QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT FOR WALES
2 Park St, Cardiff, CF10 1ET |
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B e f o r e :
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The Queen on the Application of SPVRG LTD |
Claimant |
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PEMBROKESHIRE COUNTY COUNCIL |
Defendant |
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HERITAGE LEISURE DEVELOPMENT (WALES) LTD |
Interested Party |
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James Findlay QC and Ruchi Parekh (instructed by Pembrokeshire County Council) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 11 October 2021
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Crown Copyright ©
Mrs Justice Steyn :
A. Introduction
i) The Decision was taken in ignorance of relevant considerations, namely, the 1987 Permission and the s.52 Agreement ("Ground 1", formerly the last sentence of ground 11);
ii) The Council failed to deal rationally with the visual amenity impact of variation of condition 2 ("Ground 2", formerly ground 12);
iii) The Council failed to properly understand or apply policy GN19 of the local development plan ("Ground 3", formerly ground 13);
iv) The Council failed to consider (lawfully or at all) a relevant consideration, namely, the flood risk ("Ground 4", formerly ground 14);
v) The Council's conclusion that the application complied with the development plan was flawed and irrational ("Ground 5", formerly ground 15);
vi) The Council failed to assess the fallback position properly ("Ground 6", formerly ground 16); and
vii) The Council failed to apply s.38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to condition 7 ("Ground 7", formerly ground 17).
B. The facts
The 1983 Permission
The 1987 Permission and s.52 Agreement
" the County Council as local planning authority HEREBY PERMITS:-
Stepaside Industrial Heritage Project at Stepaside
in accordance with the application and plans submitted by you on 7th May, 1986 to the Council, subject to the development being begun on a date which is not later than 5 years from the date of this permission and subject also to the following conditions:-
2. The permission now granted is for the change of use of land only and details of new buildings, alterations and other operations will be subject to separate planning applications, including listed building consent, to the local planning authority.
"
"The Company are the owners in fee simple in possession free from incumbrances of the said property and have by a written application dated 1st May 1986 applied to the County Council for full planning permission to undertake works on the said property in furtherance of the proposed Stepaside Heritage Project incorporating inter alia the resiting of caravans in the manner and for the uses set out in the plans specifications and particulars deposited with the County Council and set out in the Second Schedule hereto". (Emphasis added.)
"The Company hereby covenants with the County Council :-
(i) that the caravans and tents currently situated on that part of the said property and shown edged ORANGE on the said Plan No.1 shall be relocated on that part of the said property shown edged BLUE within a period of 12 months from the date of the commencement of any works on site and that the use of the parcel shown edged ORANGE as a caravan and camping site shall be consequently discontinued and extinguished; and
(ii) that the parcel of land shown edged ORANGE shall be used only as a car park for the purposes of the Stepaside Industrial Heritage Project and for no other form of development whatsoever without the prior written approval of the County Council.
(iv) that no building or other operations or change of use in connection with the planning permission hereby granted other than those required in Clause 3(ii) shall be undertaken, either on the application site or on other adjoining land under their control before a) the necessary facilities for disposal of sewage and b) the highway improvement works as specified in the Third Schedule and shown on Plan No.3 attached thereto have been completed to the satisfaction of the County Council." (Emphasis added.)
"Application dated 1st May 1986 (Reference No.C3/104) for detailed planning permission for development works in furtherance of the Stepaside Industrial Heritage Project incorporating inter alia the resiting of the caravans and tents currently sited on the parcel of land edged orange to the parcel of land edged blue on the said Plan No.1. "
The Bird Park Permissions
"3. The land which is the subject of this consent shall not be brought into use as a Bird and Animal Park until the Local Planning Authority has certified in writing that it is satisfied that car parking authorized by planning permission has been provided and is available for use by people visiting the Bird and Animal Park. The car parking is to provide for a minimum of 50 car parking spaces.
4. If at any time the car parking referred to in condition No. 3 ceases to be available for use by customers of the Animal and Bird Park, the area of land which is the subject of this consent shall cease to be used as an Animal and Bird Park and shall be closed to the public."
The 2001 Permission
The Lease and draft Heads of Terms
The 2016 Permission
"The application site is located within a C2 flood zone and a Flood Consequence Assessment has been submitted with the application. This has been provided to Environment Agency Wales for comment. EAW's response to consultation on this current proposal offers no objection to the application. This is upon the basis of the existing extant consent on the site for touring caravans and that the proposed static caravan pitches would result in a benefit and betterment in terms of flood risk at the site. Given this advice it is considered that the proposal complies with the requirements of Policy 113. "
The 2020 Permission
"6.15 Parcels A and F are primarily located within flood zone C2 - an area of the flood plain without significant flood defence infrastructure. In respect of the proposed bases to accommodate lodges (to be within the definition of a caravan) on Parcel A, residential premises including caravan parks are defined by TAN15 as "highly vulnerable development" in terms of flood risk. TAN15 states that highly vulnerable development should not be considered in flood zone C2. This element of the Proposal is therefore contrary to guidance in TAN15 and thus policy GN.1 in that the proposal would result in unacceptable harm to health and safety including by reason of flooding. Whether there exists any other material considerations that might outweigh this policy conflict is addressed further in this report. Natural Resources Wales (NRW) confirm that there exists no change in vulnerability in respect of Parcel F. However, due to flood risk and potential flood depth during a flood event, flood resilient measures must be incorporated into design. This could be assured by planning condition.
6.40 Planning permission for an amendment to the layout of the site and replacement of 95 static and 55 touring caravan pitches with 132 static pitches was approved on 14th March 2016 (ref.11/0585/PA). This consent remains extant. 30 pitches remain to be provided and, of these, the planning permission includes the siting of 29 static caravans on land Parcel A. This current application proposes instead 23 bases to accommodate lodges on land Parcel A. Having regard to the total number of bases that are proposed (75No.) compared to the number under the extant consent, and the conflict with planning policy that has been addressed, this "fall-back" position should be accorded limited weight (including in terms of the planning balance that should be applied to the issue of flood risk in respect of the "fall-back" position). It is also noted that the lodges that are intended to occupy the bases appear to be twin units (up to 15m x 6m on land parcel A); twin units are specifically excluded by reason of a condition on planning permission ref.11/0585/PA and, in respect of flood risk at Parcel A, are likely to accommodate more visitors per unit when compared to single static caravans." (Emphasis added.)
The Decision the 2021 Permission
"2. None of the 29 re-located caravan units within the area of the former craft village car park as shown on Drawing Number 1203/M/14 Rev A received 6th February 2012 shall be twin-unit caravans.
Reason: To limit the visual impact of the development and to accord with Policy 78 of the Joint Unitary Development Plan for Pembrokeshire (adopted 13 July 2006).
7. The "proposed public car park" as shown on Drawing Number 1203/M/11 Rev B received 6th February 2012, shall be constructed and available for public use prior to the occupation of any of the 29 caravan units within the area of the former craft village car park. This car park shall at all times be available for public use.
Reason: To ensure adequate parking provision and to accord with Policy 100 of the Joint Unitary Development Plan for Pembrokeshire (adopted 13 July 2006)."
"The grant of the 2016 Permission (application reference 11/0585/PA) is not considered a nullity and it is considered that a lawful planning permission was issued, one that has since been implemented."
"Condition 2
6.1 Condition 2 precludes twin-unit caravans "to limit the visual impact of the development". The layout approved under consent 11/0585/PA by way of discharge of condition consent ref.19/1342/DC provides for sixteen 40ftx12ft caravan bases, four 36ftx12ft caravan bases and nine 40ftx20ft caravan bases. The same layout is included in this application. Provided that a single unit caravan remains within the legal definition (that it is capable of being moved from one place to another), there is no size limitation in the existing consent. However, whether the caravans are single or twin units, their maximum size is ultimately governed by the size of these bases (albeit there may be some "overhang"). The bases are significantly below the maximum dimensions of a caravan that is achievable under the legal definition.
6.2 The applicant has submitted design parameters that indicate the use of stone skirting and a colour pallet to elevations under a black/grey roof. In respect of twin-units, whilst they would have a pitched roof, their appearance could be considered to be aesthetically more attractive than a typical single static caravan of any likely size. Compliance with the design parameters would also ensure that any single-unit static caravans have an enhanced appearance compared to those achievable under the existing consent. The detailed landscaping scheme that has already been approved would assist in screening or filtering views of the caravans once established.
6.3 It is considered that the visual impact of twin-unit caravans accommodated on the approved bases would be similar to that of a single-unit caravan (whether a single-unit caravan is of standard or non-standard size) albeit, in reality, there are likely to be a mixture of single and twin-units as the narrower bases lend themselves more to the accommodation of single units. It is also of note that under the existing consent ref.11/0585/PA the remainder of the units across the site (102 units) are not controlled with most being twin-units.
6.4 An objection has been received based on alleged non-compliance with The Ancient Monuments and Archaeological Areas Act (AMAAA) 1979 due to loss of access by the public to the SAM (Stepaside/Kilgetty Ironworks) and disturbance of the public's enjoyment of the SAM (due to loss of parking spaces and effect of the development on the SAM). This objection is material to this application to modify the planning conditions only in respect of the effect of the proposed twin units on the SAM compared with the existing consent for single units. Cadw has confirmed that neither of these proposals [the modifications of the two planning conditions] will cause any additional impact to the settings of the SAMs (Stepaside/Kilgetty Ironworks and Grove Colliery). Condition 7 requires the provision of alternative car parking facilities adjacent to the SAM (Stepaside/Kilgetty Ironworks). It is also of note that this Act relates to a discretionary power rather than a statutory duty.
6.5 In these circumstances, the proposed modification of this condition would, as with the existing consent, not result in development that conflicts with the design and visual impact tests, including on the setting of nearby historic assets, of policies GN.1 (General Development Policy) and GN.2 (Sustainable Design) (albeit the actual caravans do not constitute "development") and GN.38 (Protection and Enhancement of the Historic Environment).
Condition 7
6.6 Planning consent ref.11/0585/PA includes provision for a public car park located adjacent to the SAM. Condition 7 as currently worded requires this car park to be "constructed and available for public use prior to the occupation of any of the 29 caravan units" and that this car park shall at all times be available for public use (albeit that in reality this car park already substantially exists). The reason for the condition is "to ensure adequate parking provision".
6.7 A car park currently exists on part of the land on which the 29 caravan units are to be located. It is of note that there is no requirement under the existing planning consent, including condition 7, that this car park should be retained (including for public use). The application seeks a limited variation to condition 7 to enable only the caravan units outside the existing car park area (amounting to 14 in total) to be occupied prior to the alternative public car park being constructed and available for public use. The current car parking area would therefore still be able to be made available for public use (albeit that this is not a requirement of the current condition 7). The overriding objective of the current condition is not therefore prejudiced by its proposed modification and there is thus no conflict with policy GN.1 in respect of parking provision and any associated implications for highway safety.
Other matters
6.8 When considering an application made under Section 73 of the Planning Act, whilst the LPA cannot revisit the original permission (in this case consent 11/0585/PA) and reconsider whether it should have been granted in the first place, the Committee should understand that approving an application made under Section 73 would result in a new standalone planning consent coming into existence and case law has established that the principle of development subject to such a prospective consent should be considered having regard to the current development plan and any relevant new material considerations, particularly since the original permission was granted. As the original permission was determined with regard only to the previous development plan (the Joint Unitary Development Plan) it is appropriate to assess the current proposal against the current development plan.
6.9 The development results in the upgrading of touring pitches to static pitches which results in some conflict with Policy GN.19 (Static Caravan Sites). Parts A and B of that policy are not applicable. As to Part C, whilst Stepaside is a large local village as defined in the LDP with the development being well- related to that settlement, it does not provide a community facility not present within the existing settlement (part C2) and small parts of the application site are within two Community Council areas where the principle of such upgrading is not supported (part C3). However, it is evident that of these two small parts of the site, the first that is within the Saundersfoot Community Council area has already been developed in accordance with consent ref.11/0585/PA and the second that is within Amroth Community Council area is not subject to development or the siting of any caravans under consent ref.11/0585/PA. It is also noted that in the supporting text, general support is expressed for upgrading, and whilst that does not negate conflict with policy it is relevant when assessing the extent of conflict in the terms of the development plan as a whole.
6.10 Notwithstanding the benefits of the variation of the section 106 agreement, the development would create an enhancement for those reasons addressed in paragraphs 6.2 and 6.3; this would be supported by reason of policies SP 5, GN.1 & 2 and GN.38 (and GN.19 in part) in relation to controlling appearance within defined design parameters that would ensure a good quality design, and an improved layout and comprehensive landscaping scheme that did not form part of the original consideration of application 11/0585/PA, to the benefit of the setting of the SAM. In so far as GN.1 is concerned with flood risk, the proposal results in a neutral effect when compared with the implemented consent (this is further discussed in paragraph 6.13.) On balance these matters are considered to outweigh the non-compliance with policy GN.19 and thus the development would be in accordance with the LDP when considered as a whole.
6.11 Even if the above view is not accepted, it is noted that planning permission 11/0585/PA has been lawfully implemented and the 29 caravan units could also be lawfully provided under that same consent. The proposed modified conditions have been shown to raise no substantive planning issues on detailed matters. This fall-back position should be accorded substantial weight and is a material consideration that supports the proposed development. It is considered the fall-back is realistic and is capable of implementation (and indeed has been largely implemented with works continuing) if this application were to be refused. Therefore, even if the development was considered to be contrary to the development plan then the benefits of the proposal and the fall-back position would nevertheless outweigh non-compliance with the plan and permission should be granted. Further it is considered that neither alteration to the conditions goes to the heart of the permission. It is asserted in the threat of challenge that the original permission cannot be implemented in so far as the northern car park is concerned unless and until the lease is varied. However, that has not prevented implementation of the original permission and in so far as relevant would apply to both the original permission and any new permission alike.
6.13 Representations have raised a number of issues most of which have been addressed in this report. On those that have not been, the following comments are made:
- Flood risk, potential pollution and effect on wildlife are matters considered at the time of the original application and are not a material factor in the determination of this application. Nevertheless on flood risk, the part of the site subject to this application is located within flood zone C2 an area of the floodplain without significant flood defence infrastructure. Natural Resources Wales (NRW) did not request the imposition of condition 2, it was placed on the consent for visual amenity reasons. Nevertheless, as addressed in the report, the size of either single caravans or twin-units is ultimately governed by the size of the bases that have already been approved; the maximum size of a twin unit caravan could thus be similar to what could be achieved with a single unit. Thus there is no evidence to suggest that the number of occupants would be materially greater with twin units when compared to single units. " (Emphasis added.)
"6.14 The proposed conditions can therefore be modified in accordance with the recommendations in this report. In respect of condition 2, the visual impact of any twin-units would not be significantly greater than a single-unit caravan and would not result in an unacceptable visual impact subject to compliance with the layout that has already been approved and the design parameters that have been included. In respect of condition 7, the objective of the current condition would not be prejudiced by its proposed modification.
6.15 When considering the application with regard to the development plan, it is considered that there would be no conflict with the LDP but in any event the fall-back position of the existing consent should be afforded substantial weight and therefore there is no basis upon which to reconsider the principle of permission."
"1:14:35
I think the reference that has been made to flooding not being material factor is a reference to the situation that the 2016 [permission?] was actually a variation of an earlier planning permission and as part of that Application the development created a betterment in terms of flood risk, so whilst there was conflict with the advice in TAN 15, the conflict with TAN 15 was less than the conflict caused by the development that the 2016 Application sought to vary. Now as the current application is a variation of the conditions of the 2016 permission the argument about betterments still applies because as part of this variation of condition application a new permission is issued. That permission if compared to the fallback position that led to the 2016 permission is a betterment in terms of flood risk, so whilst there is technically non-compliance on the development as a whole with the criterion seven of GN1, the situation is that the development is a betterment in relation to the application which the 2016 commission [sic] flowed from so that that is really to say that flooding is a material consideration but it is not a material consideration that plays as heavily in consideration of this application as objectors would suggest.
1:16:28
The second issue I would raise is that in respect of the apparent contradiction between the approach taken on application 19/0506 under current application the 19/0506 application withdrawn from committee in March of last year was for a major development that related to a lot of elements. And there were elements and the majority, well the elements of that scheme were contrary to policy and contrary to the plan and therefore there was a recommendation of refusal. In such circumstances the convention is that all matters that are problematic in terms of policy are raised as reasons for refusal. Such that if the matter goes to appeal those matters that could be addressed if an appeal was going to be successful could be dealt with and could be used as a mechanism to ensure planning conditions so flood risk was mentioned in order that if on appeal an inspector considered the application acceptable the flood risk reason would be used as a mechanism to ensure that there were suitable conditions to mitigate the impact on flood risk such as the caravan anchoring and the flood evacuation plan which were conditions of the 2016 permission.
1:18:01
So on the face of it while appears to be a contradiction there isn't a contradiction the current application is considered to have some conflict with planning policy because there are elements of policy GN19 that it doesn't comply with, but it is compliant with the plan and therefore there is a recommendation of approval in those circumstances the flood risk issues are dealt with by conditions which require the approved caravan anchoring details and the approved flood evacuation measures be conditions of any permission the committee grants.
1:20:11
Yes, I just wanted to, well reiterate the points that flooding is a material consideration, but it is one that has been assessed in relation to the fallback position and the other issue I would just mention is that with regard to twin unit caravans and single unit caravans; within the legal definition of a single unit caravan, there is no reference to the size of a single unit caravan. The definition of a single unit caravan is a structure that is adapted for human habitation, which is capable of being moved from one place to another. So in that respect, there is no size limitation for a single unit caravan whilst there are standard sizes of single unit caravans, there is no restriction on the size of a bespoke or you know, caravan that is manufactured. So in that respect the assessments in relation to the visual impact between unit caravans, and the flood issue in respect of occupancy, has been based on an assessment of the size of twin unit caravans versus the size of... the size of a single unit caravan. Which as I say is not defined in terms of dimensions
1:27:44
The second point about flood risk is that we've acknowledged that TAN 15 is a relevant consideration and that flood risk is a material planning consideration, and what we are saying is that insofar as it is a material consideration, it does not merit significant weight in this instance because this is an application to vary two conditions of an implemented permission and the difference between that implemented permission and the permission generated by this variation of condition is not significant and in part that is because there is no restriction on the size of a single unit caravan as I indicated so whilst it on the face of it, it might appear that the twin unit caravan would be larger than a standard single unit caravan, you can't make the same judgement that a twin unit caravan is larger than any single unit caravan. (Emphasis added.)
"Chair:
1:28:52
So, in terms of the impact of this proposal to amend the exiting consent the impact over and above the impact of the previous consent as regards flooding is not perhaps appreciable is the wrong word it cannot be quantified, it's not significant enough, simply because it's not something which was quantified by the size of the bases in the previous consent. The impact over and above the previous consent is not something which is necessarily going to be in fact it's possible it could be reduced, is it David? It's the unknown??
Mr Popplewell
1:29.37
Well, it is an unknown, and again the point is that, you've heard comments that a twin unit caravan is larger than the single unit caravan and that is the case for standard sizes of single unit caravan, but as there is no legal definition of a caravan which includes a size limit there is nothing to stop, technically, somebody putting a single unit caravan of a size equivalent to or even greater than the size of a twin unit caravan. There are questions as to the likelihood of that which we have considered. Clearly getting an off-the-shelf single unit caravan will potentially come in a range of standard sizes which are typically smaller than twin unit caravans, but that does not mean that a larger than standard size single unit caravan could not be procured. The layout has been designed in a way, you know, to accommodate development in a way that respects the character of the area, respects the character of the Scheduled Ancient Monuments and so, when considering, you know, that unit restriction, that twin unit restriction, was something of a blunt tool to try and restrict the size of caravans, but it didn't restrict the size of single unit caravans and it may be a product of its time and that as the leisure industry grows and expands, the use of non-standard sized units is becoming more and more of a factor that needs to be considered.
Chair:
1:31:24
Well, thank you again, what I said perhaps wasn't articulated well, but I think I understand now clearly that what was granted previously and what's already on the books might have a more harmful impact potentially or could have a better impact it's such a wide gamut on the previous consent that this amendment to it, it's not likely to It's very difficult to explain. I understand it, but I can't explain it, and I think you explained it as best as we could probably, but the impact over and above, created by this proposal as regards flooding is not necessarily any greater than what cold have been implemented by the previous concerns [consents?]." (Emphasis added.)
"1:34:53
Condition two was not attached to the consent due to flood risk reasons, it was attached to the consent due to visual amenity reasons. The reason condition two isn't there for flood risk reasons is because in 2016 under the 2016 consent, there were tourers on the site, benefiting from the previous consents that were close to the watercourse and therefore as Mr Popplewell mentioned, that consent provides for a betterment - those 29 units, is a betterment in terms of flood risk, compared with the previous consent.
1:39:18
Councillor Dennis's second question, if I'm right, asked about the provision of the southern car park, which he is right and you are right, is substantially there at present. To comply with the condition there probably needs to be, you know, further signage and more sort of formality to that, but the car park is nevertheless there. But what needs to be understood is that under the existing planning condition number seven; condition number seven doesn't afford any protection for the existing northerly car park. Under the planning permission that exists at present, that car park could be removed tomorrow. So, you know, the condition seven simply states that none of the units on the 29 unit site can be occupied before the southern car park that's already substantially provided, is provided in its entirety, and the application before you is that rather than none of the units being occupied, that those units outside the existing car parking area can be occupied so there's no additional prejudicial negative for the retention of the existing car park. The 29 units, caravans, could be provided under the existing consent. It's only their occupation that is controlled "
"the Council does not consider that there is any planning purpose of the covenant and the car park as envisaged by the 1987 Permission. This is because no subsequent applications for development were submitted and the car park was and is not therefore required in connection with any development on site or, for that matter, in connection with any adjoining development the Animal and Bird Park for e.g. has ceased to operate."
C. The legal and policy framework
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."
"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."
"27. Of the five points I mentioned in BDW Trading Ltd. (at paragraph 21), three seem particularly relevant here: that "the decision-maker must understand the relevant provisions of the plan, recognizing that they may sometimes pull in different directions"; that "section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty"; but that "the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole".
28. In R. v Rochdale Metropolitan Borough Council, ex parte Milne [2000] EWHC 650 (Admin) Sullivan J., as he then was, said (in paragraph 48):
"48. It is not at all unusual for development plan policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: "is this proposal in accordance with the plan?" The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach. ".
He then referred to the observations to that effect made by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 (at p.1459D-F):
" [The decision-maker] will have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it. "."
" The respective roles of the planning authorities and the courts have been fully explored in two recent cases in this court: Tesco Stores Ltd v 983, and Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] 1 WLR 1865. In the former Lord Reed, while affirming that interpretation of a development plan, as of any other legal document, is ultimately a matter for the court, also made clear the limitations of this process:
"Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse " (para 19)
In the Hopkins Homes case (paras 23-34) I warned against the danger of "over-legalisation" of the planning process. I noted the relatively specific language of the policy under consideration in the Tesco case, contrasting that with policies:
"expressed in much broader terms [which] may not require, nor lend themselves to, the same level of legal analysis ""
"40. The Planning Court and this court too must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision- making has been assigned by Parliament, not to judges, but at local level to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and on appeal to the Secretary of State and his inspectors. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also however well or badly a policy is expressed that the court's interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect in every case good sense and fairness in the court's review of a planning decision, not the hypercritical approach the court is often urged to adopt.
41. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court and applied in many cases at first instance
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way so that, but for the flawed advice it was given, the committee's decision would or might have been different that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading misleading in a material way and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427). But unless there is some distinct and material defect in the officer's advice, the court will not interfere." (Emphasis added.)
"The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it:
(1) Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker.
(2) The relevant law as to a "real prospect" of a fallback development being implemented was applied by this court in Samuel Smith Old Brewery (see, in particular, paragraphs 17 to 30 of Sullivan LJ's judgment, with which the Master of the Rolls and Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery, in this context a "real" prospect is the antithesis of one that is "merely theoretical" (paragraph 20). The basic principle is that " for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice" (paragraph 21). Previous decisions at first instance, including Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P. & C.R. 61 must be read with care in the light of that statement of the law, and bearing in mind, as Sullivan L.J. emphasized, " "fall back" cases tend to be very fact- specific" (ibid.). The role of planning judgment is vital. And "[it] is important not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court" (paragraph 22).
(3) Therefore, when the court is considering whether a decision-maker has properly identified a "real prospect" of a fallback development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the "real prospect" will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker's planning judgment in the particular circumstances of the case in hand."
"One such consideration, and no doubt one to which WCC might have wanted to ascribe great weight, was the fact that there was a permitted scheme in existence, which if it went ahead would include the restoration of the listed building. It may be that, on applying s 70(2) TCPA 1990 and s 38(6) PCPA 2004 that fallback position would have outweighed the clear objective of CM 28.1 of preventing a development with basements such as these from being built, with the consequent disruption of the street scene and of neighbours for an extended period. But assessment of the weight to be given to the fallback position must have looked at the likelihood of it going ahead without the proposed 2016 amendments, and of the likelihood of a scheme not going ahead which would not have included basements of the scale proposed here.
Those considerations were simply never explored by WCC. I do not suggest what weight should be given, nor how the competing advantages or disadvantages should be weighed the one against the other, or the s 38(6) balance determined. That is a matter for the local planning authority, and not for the Court."
"So far as ex post facto reasons are concerned, the authorities draw a distinction between evidence elucidating those originally given and evidence contradicting the reasons originally given or providing wholly new reasons: Ermakov, pp.325-6. Evidence of the former kind may be admissible; evidence of the latter kind is generally not. Furthermore, reasons proffered after the commencement of proceedings must be treated especially carefully, because there is a natural tendency to seek to defend and bolster a decision that is under challenge: Nash, [34(e)]."
The Local Development Plan
"Development will not be permitted where:
i) it involves land which is at a risk of flooding, including tidal inundation; or
ii) it is likely to increase the risk of flooding elsewhere; and
iii) the development would hinder flood control or maintenance works."
"GN.1 General Development Policy
Development will be permitted where the following criteria are met:
7. It would not cause or result in unacceptable harm to health and safety;
GN.19 Static Caravan Sites
A. Proposals for new static caravan and chalet sites or extension to existing sites by an increase in the number of pitches will be permitted where:
1. the site is within the Settlement Boundary of a defined settlement;
B. The enlargement of the area of a static caravan or chalet site will be permitted where it would achieve a demonstrable overall environmental improvement both for the site and its setting in the surrounding landscape.
C. Upgrading of touring pitches to static pitches will be permitted where:
1. The site is well-related to a settlement identified in the hierarchy as a Service Village, Service Centre or Town; or
2. The site is well-related to a Local Village, and will provide a community facility not present within the existing settlement, and
3. In all cases the following should apply:
i) There is no overall increase in the number of pitches; and
ii) There would be a demonstrable overall environmental improvement both for the site and its setting in the surrounding landscape; and
iii) The site is outside the Community Council areas of Amroth, St Florence, East Williamston, Penally, Saundersfoot and St Mary out Liberty."
" the upgrading of existing touring pitches in sustainable locations can offer the opportunity to improve the overall stock of holiday bed spaces in the static caravan sector and improve existing touring sites. It will apply only to existing touring pitches that are fully authorised by express planning permission. Development should not have adverse landscape impacts and should incorporate screening to ensure that the site blends into the landscape."
"6.2 New development should be directed away from zone C and towards suitable land in zone A, otherwise to zone B, where river or coastal flooding will be less of an issue. In zone C the tests outlined in sections 6 and 7 will be applied, recognising, however, that highly vulnerable development and Emergency Services in zone C2 should not be permitted. All other new development should only be permitted within zones C1 and C2 if determined by the planning authority to be justified in that location. Development, including transport infrastructure, will only be justified if it can be demonstrated that:-
i. Its location in zone C is necessary to assist, or be part of, a local authority regeneration initiative or a local authority strategy required to sustain an existing settlement; or,
ii Its location in zone C is necessary to contribute to key employment objectives supported by the local authority, and other key partners, to sustain an existing settlement or region;
and,
iii It concurs with the aims of PPW and meets the definition of previously developed land (PPW fig 2.1); and,
iv The potential consequences of a flooding event for the particular type of development have been considered, and in terms of the criteria contained in sections 5 and 7 and appendix 1 found to be acceptable."
D. Ground 1: Failure to take into account relevant considerations - the 1987 Permission and the s.52 Agreement
Admissibility of the Council's evidence
The claimant's substantive submissions on ground 1
"The 1987 permission was definitely implemented. In particular, the car park has been available for use in the north of the site since the late 1980s. This article from the Western Mail 27th May 1989 records the public opening of the Stepaside Industrial Heritage Project."
"THIS MONTH saw the official opening of the Stepaside Industrial Heritage Society project and Spring Bank Holiday weekend will be its first opening to the public.
These events marked an important milestone which was reached largely thanks to the support and efforts of South Pembrokeshire District Council and over many years the dedicated enthusiasts who formed the basis of the Stepaside Industrial Heritage Society.
What is now open to the public is still a small scale attraction an interpretative centre and shop, tea room in a landscaped picnic area and horticultural training unit from which plants can be purchases [sic]."
"The short-term agreements regarding car parking, site access, etc had enabled the smooth operation of the car park and visitor reception. Saundersvale Estates had agreed to an extension of these arrangements, to be reviewed in October; they had been given an assurance that once the required approval from the WDA had been received then the lease negotiations would be concluded.
A car parking charge of £1.00 per parked car was being collected by a member of the Project Staff, who had been engaged in Section 15 works in the car park
9 SECTION 15/16 WORKS
In respect of Land Reclamation Scheme Works, decisions were awaited from the WDA. Work, however, continued on Section 15 funded Schemes, including land-scaping and general environmental work.
Under the WDA Section 15 Scheme, 80% grants for the Improvement of the Environment approval had been received for a submitted scheme for works to the main car park, site entrance and landscaping. The total cost over three years would be £70,000, which meant that the Project could incur this expenditure over 48 months as from 1.4.90. This grant would underpin the proposals for entrance improvements, bridge re-construction, etc."
" the highway authority recommend a conditional consent, but suggest a condition that adequate facilities for parking and turning shall be made available at all times within the site. In fact there is no scope for visitor parking within the site. The original bird park relied on joint use of the main Stepaside Heritage car park at the northern end of the caravan site. This car park has been used, but is limited in size and is in a different private ownership. I do not think that a major expansion of the bird park/zoon should be allowed reliant on this alone." (Emphasis added.)
"A matter which does concern you and which I have pointed out to the County Secretary relates to the observed pitching of a tent on Friday 14th June on an area covered by the Section 52 Agreement in 1987 for use as a car park only (Clause 3(ii)); the use for caravanning and tents was to have ceased under Clause 3(i). It may have been that this was an oversight by your staff in this instance and I invite your comments but I trust you will abide by the legal agreement you signed in 1987 in the future."
"Thank you for your letter of 17/6/91. As you are aware the whole future of the Stepaside area depends on the conclusion by SPDC of the agreement to purchase or lease the land they require for the project.
This has led to the delay in signing and implementing the new section 52 agreement, and delay in the sale or lease of the land you refer to to SPDC.
This has inevitably led to a number of false starts and changes in respect of the land areas and their useage.
I understand from SPDC that their final proposal is now with WDA and that a conclusion will be reached shortly. In the meantime we have reached agreement with them over a smaller care park area as an interim measure, which is designed to assist them to provide a presence on the site prior to formal agreement.
In addition we have agreed with the Saundersfoot Steam Railway Co for a temporary line whilst they await the grant of the LRO to enable the whole project to proceed. This was the subject of a separate application to SPDC which has been approved.
Our error appears to have been simply one tent, and I hope that very shortly the position with SPDC will be clarified to enable all the loose ends in this respect to be tidied up."
" The argument being put forward is that South Pembrokeshire District Council and Saundersvale Estates have not come to an agreement about the sale/lease of the land necessary to carry out the heritage scheme as approved by Dyfed County Council on 3rd March 1987, therefore the clauses of the 1987 Section 52 Agreement cannot be adhered to. Notwithstanding the ownership situation (1) the road improvements (clause 4) have been carried out, (2) the site entrance has been formed and is in use, (3) part of the car park has been provided. No new buildings have been provided however. For the purposes of the section 52 Agreement could these works be classified as the "commencement of any works on site"? (Clause 3(i)). If you agree that they do comprise "commencement of any works" then my earlier memorandum is correct and requires your attention. If you do not agree that the planning permission has been implemented then South Pembrokeshire District Council has until 3rd March 1992 to commence work in order to take up the 1987 permission and the Railway Company will not require the County Council's agreement.
The evidence does not show how the county secretary responded.
"I enclose a copy of the decision notice and would like to draw your attention to:
(c) conditions 1 and 6. Before the decision was issued Saundersvale Holiday Estates, represented by a Director whose signature is indecipherable and Mr A. Caine as Secretary, singed an agreement under s.52 of the Town and County Planning Act 1971 with the County and District Councils. That agreement which is binding to successors in title, required
(ii) the removal of caravans and tents from an area to the north of the Company's site to be relocated to the north, north-east, east and south-east of Golden Grove and the vacated land to be used only as a car park for the purposes of the Project and for no other form of development without the prior approval of the County Council;
Although there was a clear delineation on the 1987 plan between the SIHP area and the caravan park the application site, delineated by a red line included the existing touring caravan and tent park and where it was to be relocated. Therefore there is no permission other than that granted in 1987 for the relocation of 41 touring caravan pitches as described in (ii) above near to Golden Grove, on land which straddles the National Park Boundary, and this permission is linked to a number of other aspects of the caravan park and on highway works by conditions and agreement. You can not therefore implement the touring caravan element without the other matters referred to above.
The planning situation with regard to your land holding at Stepaside as well as having been extremely contentious is obviously extremely complex as apart from the above there are decisions made by the National Park and the District Council for the land wholly within their administrative areas. From the short visit to your site it was difficult to ascertain whether the works you have been undertaking are within the terms of the various permissions or whether they can be considered permitted development. Therefore, before the meeting between officers of the three authorities and your representatives can take place I would ask that the enforcement officers from the authorities look at the site in more detail as soon as possible and prepare reports for the planning officers involved so that they will have as much information as possible available to them when discussing your proposal in more detail. " (Emphasis added.)
"The highway works have been completed but the sewage facilities have not. Therefore, no other development included in the planning application should be carried out until the facilities are n place. Whilst clause (ii) was exempt from this limiting requirement, Condition 2 on the decision notice makes it quite clear that the planning permission was for change of use only. Therefore the earthworks carried out at the end of last year (below Golden Grove) by your predecessor was unauthorised and the position needs to be regularised before the area can be used for touring caravan pitches."
"What is clear to the residents on the ground is that the use of the land at the northern end of the site did change. Since the 1980s, it has only been used as a car park, and not a caravan site. The lawful use of the northern area thus became car park use and any reversion to caravan use would, as I understand matters, require a new planning consent to be granted."
The Council's substantive submissions on ground 1
"The press article states 'what is open to the public is a small scale attraction an interpretative centre and shop, tea room in landscaped picnic area and horticultural training unit from which plants can be purchases (sic).' The description of what was open to the public does not refer to the development described in the 1987 Permission but rather refers to the development (planning permission D3/1209/88 for Tearoom, Crane Exhibit, Horticultural unit and Flank stone walls to entrance) within a number of sites to the west of the site of the 1987 Permission."
Analysis and decision on ground 1
E. Ground 2: Rationality visual impact on amenity of removal of condition 2
"The only difference between a twin unit caravan and a single unit caravan is that a standard single unit caravan in general is 4.2672m (14ft) in width. The reason for this is that 14ft-wide caravans can be transported by road with little complication, however the regulations from the Department for Transport (Road Vehicle Authorisation of Special Types General Order 2003) states that loads over 6.1m (20 feet) can be transported by special order.
It could therefore be possible to install single unit caravans over 20ft on the site which would be the same size as a standard twin unit caravan."
The claimant contends the requirement of a special order shows that transportation of outsize single unit caravans would be difficult and costly, making it improbable a developer would site such units in the area.
F. Ground 3: proper application of policy GN.19 of the LDP
"6.9 Policy GN.19 (Static Caravan Sites) of the current LDP supports proposals for extensions to existing sites by an increase in the number of pitches when that site is within a settlement and thus the proposal, if a new application, would fail to accord with policy GN.19. However planning consent 11/0585/PA has been lawfully implemented and the 29 caravan units could also be lawfully provided under the same consent. " (Emphasis added)
G. Ground 4: Failure to take into account or lawfully consider the flood risk
H. Ground 5: Irrational and flawed assessment of compliance with the LDP
I. Ground 6: failure to assess the fallback position properly
J. Ground 7: Failure to apply s.38(6) of the Planning and Compulsory Purchase Act 2004 to condition 7
K. Conclusion