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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stoke Mandeville Parish Council, R (On the Application Of) v Buckinghamshire Council [2025] EWHC 1213 (Admin) (16 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1213.html
Cite as: [2025] EWHC 1213 (Admin)

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Neutral Citation Number: [2025] EWHC 1213 (Admin)
Case No: AC-2024-LON-003358

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
16/05/2025

B e f o r e :

MRS JUSTICE LIEVEN
____________________

Between:
THE KING (on the application of)
STOKE MANDEVILLE PARISH COUNCIL
Claimant
- and -

BUCKINGHAMSHIRE COUNCIL
Defendant

____________________

Ms Heather Sargent (instructed by Richard Max & Co LLP) for the Claimant
Mr Hugh Flanagan (instructed by Buckinghamshire Council Legal Services) for the Defendant

Hearing date: 2 April 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 16 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    MRS JUSTICE LIEVEN

    Mrs Justice Lieven DBE :

  1. This is an application for judicial review of the decision of Buckinghamshire Council ("the Council") to grant planning permission for the development of Bucks CC Sports and Social Club, Lower Stoke Road, Stoke Mandeville ("the Site") for 100 residential units. The Claimant is the Stoke Mandeville Parish Council ("the PC"). The Council was both the applicant for planning permission and the Local Planning Authority.
  2. The Claimant was represented by Heather Sargent, and the Council was represented by Hugh Flanagan.
  3. The Site had formerly been in use as Buckinghamshire County Council's Sports and Social Club ("the Club"). It comprised a clubhouse and two fields which could be used for football, cricket, tennis and a car park. The background to the cessation of this use is relevant to the Grounds of challenge and is therefore set out below.
  4. On 28 July 2017 the Council's Cabinet Member for Resources decided to close the Club. After concerns were raised about the consultation leading to the decision, the Finance, Performance and Resources Select Committee ("FPRSC") agreed that the initial decision should be referred back for reconsideration after a three month period for further discussions with local members and the Club Committee.
  5. In November 2017 the Club put forward a Business Plan to keep the premises open as a sports and community facility. During the consideration of whether to close the Club, the Council instructed Savills to advise it, inter alia, on the viability of any proposals for reuse. This work included Savills carrying out a detailed viability assessment of the proposal put forward to keep the Club open. This assessment concluded that there would be a very significant deficit on the operation of the Club, with an analysis of loss of £65,000 per annum.
  6. On 19 December 2017 there was a further FPRSC meeting and the Cabinet Member said the original decision would stand.
  7. The Clubhouse closed in January 2018 and the Site stopped being used in June 2018. In August 2020 the Site was designated as an Asset of Community Value ("ACV").
  8. On 3 November 2022 the Council made the application for planning permission. Sport England, who were a statutory consultee, objected to the loss of the playing fields. The PC also objected to the application.
  9. On 15 December 2023 the application first came before the Development Control Committee, and an Officers' Report was produced ("OR1").
  10. On 29 February 2024 the PC submitted a bid to the Council to buy the Site in order to retain it in sports and recreational use.
  11. On 9 May 2024 the application came back before the Development Control Committee. The Committee determined to approve the application, subject to it being referred to the Secretary of State to consider calling it in. On 6 August 2024 the Secretary of State determined not to call it in and planning permission was granted on 29 August 2024.
  12. Grounds

  13. There are three Grounds. Eyre J granted permission on Grounds One and Three, and refused permission on Ground Two (and another Ground which is not pursued). Mould J ordered that the renewal application on Ground Two should be dealt with at a rolled up hearing.
  14. The Grounds are:
  15. a. Ground One – that the Council misinterpreted Policy I2 of the Vale of Aylesbury Local Plan ("VALP") and para 103 of the National Planning Policy Framework ("NPPF");
    b. Ground Two – that the Council's conclusion that the Site was not an existing sports/recreational facility was irrational;
    c. Ground Three – that the Council erred in law in respect of Policy I3 of the VALP.

    The Law on Officers' Reports

  16. The challenge largely turns on the contents of the two Officers Reports; OR1 was dated 15 December 2023 and the second Officers' Report ("OR2") dated 9 May 2024.
  17. The law on the correct approach to challenges to an Officers' Report was comprehensively set out by Lindblom LJ in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 at [41]-[42]:
  18. "41. 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. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a "doctrinal controversy". But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker's own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council ). That of course may not always be so. One thing, however, is certain, and ought to be stressed. 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.
    42. 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, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) , at paragraph 15).
    (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."
  19. Where the Court is faced with an argument that the Local Planning Authority has erred in respect of a policy, it is critical to consider whether the alleged error is one of misinterpreting the policy or misapplying the policy. The difference was set out by Lord Reid in Tesco v Dundee CC [2012] PTSR 983 at [17]–[23], which I refer to further below under Ground One.
  20. The First Officer's Report (OR1)

  21. OR1 starts with a Summary which at 1.4-1.5 states:
  22. "1.4 … Given the sports facilities and clubhouse have not been used on this site for several years and that there is only on going maintenance in terms of cutting of the grass and security matters, it is not considered that there would be any material loss of employment at the site from its current use. Overall, this matter is afforded moderate weight.
    1.5 The loss of the previous use of the site as providing sports and recreation facilities is acknowledged, and a full background to this has been provided in the report below, however, this use ceased in 2017/18 and in interpretating Policy I2 of the VALP this relates to the loss of existing facilities. …"
  23. Section 2 sets out a description of the Site and its history. 2.1 refers to the fact that Site continues to have football nets erected.
  24. Section 7 sets out "Policy Considerations" and Policy I2 and NPPF para 103 are correctly recorded. OR1/7.9 states:
  25. "7.9 The opinion of the Council's Parks and Recreation Officer is that the Bucks Sports and Social Club does not provide an existing facility. The applicant is also of the opinion that they are not existing sporting facilities and therefore Policy I2 is not relevant. It is noted that a number of the representations received object to the loss of the facilities and also that Sport England consider that their loss should be an important factor in the determination of the application and that Policy I2 is relevant. Clearly there are different views on whether Policy I2 is applicable or not. Ultimately this is the planning judgement of the decision maker."
  26. OR1/7.14-7.18 are central to this case:
  27. "7.14 The advice of the Policy Team has been sought in terms of the interpretation of the policy and it has been clarified that the policy should apply to something currently in use or quite recently, or that to bring the site back into use would be quite simple like releasing keys to a pavilion. The policy wasn't intended to keep disused or sites in very poor state of condition protected from consideration from alternative use. The position is considered to be consistent with the relevant NPPG and the protection given to existing sports facilities.
    7.15 The existing sports facilities which were for BCC staff primarily but also used by other clubs and groups, closed in 2017. Therefore, it is considered that it is a strong argument that the facilities are not existing facilities for the purposes of applying Policy I2, or indeed paragraph 99 of the NPPF and that this has been the situation for a number of years (since 2017/2018). In addition, whilst it could be said that the sports grounds could be brought into use, the existing clubhouse building is in a poor state of repair and would not be able to be brought into use without considerable repairs and modernisation. This has been considered in details in the history of the Sports and Social Club above.
    7.16 Having regard to the above matters and details of the application and the site, it is your officer's judgement that Policy I2 is not a relevant policy for the determination of this application. Also given the view that these are not existing facilities there would not be a conflict with paragraph 99 of the NPPF.
    7.17 Policy I3 of the VALP relates to community facilities, infrastructure and assets of community value. This site has been designated as an 'Asset of Community Value' since 6th August 2020 and this will expire on 5th August 2025. The site is listed as a 'Sports Club Asset'. Policy I3 states that the loss of a community facility requires justification which demonstrates that the proposed development would result in an equivalent or better provision in terms of quantity and quality in a suitable location. When considering applications for alternative uses, the council will consider the viability of the existing use, that the site/use has been marketed for a minimum period of 12 months with proof that there has been no viable interest, the presence of alternative local facilities and the community benefits of the proposed use.
    7.18 It is clear from the information set out above that the site has been closed for many years and was subject to attempts to keep the social club open before it was closed. The buildings are either demolished or in a poor state of repair and no viable proposal has been put forward for their repair and re-use. It is acknowledged that the facilities are not being replaced by other facilities in the locality as they are not considered to be existing facilities that have been lost. However, a financial contribution will be secured from the development (in terms of open space and recreation provision as would normally be required from this size of residential development) which would contribute towards the upgrading and renovation of the existing facilities at Walton Court which is in close proximity to the site."
    [emphasis added]
  28. From OR1/7.88 onwards consideration is given to community facilities and there is a reference to Policy I3. OR1/7.93 includes:
  29. "7.93 … Whilst it is acknowledged that scale of the sports facilities would significantly diminish from what could be provided on the site with the appropriate investment, it is clear that this is unlikely to happen at the current time. The provision of the sports pitch would enable some sports usage to be retained for the community, albeit outside of school hours. A planning condition could ensure that a community use agreement is in place and the facilities available for use, once the development is complete."
  30. I set out the relevant parts from OR2 below under Ground Three.
  31. Ground One

  32. Policy I2 of the VALP is headed "Sports and Recreation". The relevant part of the policy for the purposes of this case is "Any proposals involving the loss of existing sports and recreation facilities will only be accepted where any of the following criteria are met….". There are then four criteria covering assessment of whether the facilities are surplus; impact on the overall open space network; whether the loss would be replaced by equivalent provision and whether the need for other facilities outweighs the loss.
  33. Paragraph 103 of the NPPF states:
  34. "Existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless:
    …
    c) the development is for alternative sports and recreational provision, the benefits of which clearly outweigh the loss of the current or former use".
  35. The central issue is the approach to the words "existing" facilities in Policy I2. Ms Sargent submits that OR1/7.14 misinterpreted the policy within the meaning of Tesco v Dundee and therefore members were seriously misled. She relies in particular on the words "the policy should apply to something currently in use or quite recently, or that to bring the site back into use would be quite simple like releasing keys to a pavilion". The Committee were advised that Policy I2 did not apply because the Site was not an "existing" sports/recreational facility.
  36. Ms Sargent submits, and Mr Flanagan accepts, that a site does not cease to be an "existing" facility for the purpose of the policy simply because it is no longer in use as such. She points to para 103(c) of the NPPF which makes this entirely clear by the reference to "former use". However, OR1 focused very strongly on the lack of a continuing "use" of the site rather than having any sufficient acknowledgement that even where a use had ceased that did not mean that it could not be an "existing" use.
  37. The OR1 reference to the site needing to be "quite recently" in use, she submits, is clearly inconsistent with the Town and Country Planning (Development Management Procedure) (England) Order 2015 ("DMPO"), which under Article 18 places a requirement that Sport England be consulted over the loss of a playing field which has been used at any time in the 5 years before the application is made. This shows an intent that even where a use ceased a considerable period of time before the application, that earlier use may continue to be a highly relevant consideration.
  38. Ms Sargent relied upon WE Black v First Secretary of State [2007] 1 P&CR 7 where the Court was dealing with whether a site was an existing recreational facility. I note that the facts were very different from the present ones, indeed they could be considered the reverse of the present case. The Inspector had found the facility still to be "existing" even though it had been demolished. Further, the case has to be approached with some caution because it predated the decision of the Supreme Court in Tesco v Dundee so the approach to the interpretation of planning policies was different from the current legal position. However, Mr Bartlett QC, sitting as a Deputy High Court Judge, said:
  39. "17. The question in the present case is whether, in treating this cleared site as an existing recreational facility and an existing sports facility, the inspector was attributing to those terms in policies SR1 and R2 a meaning which they could not reasonably bear. The terms "existing recreational facility" and "existing sports facility" necessarily imply, in my judgment, a physical resource with particular features that make provision for recreation or sport. As used in policies SR1 and R2 they must be more than simply a reference to the site on which such a facility exists or previously existed, and, in my judgment, the inspector, in holding that this site was subject to those policies, gave the words a meaning that they are not capable of bearing. The fact is that the facility that formerly existed on the site has been removed. The facility had consisted of the building housing the health club, and the building has been demolished. The site is now a cleared site, and the facility does not continue to exist in any physical respect.
    …
    19. … Such a conclusion would, it seems to me, be no less tenable if, for instance, a pavilion on the land had been demolished. The land itself, if it had not been rendered incapable of playing field use by the carrying out of some other lawful development, could still reasonably be regarded as an existing facility, albeit that it was not immediately available for people to use. What takes the circumstances of this case outside the range of circumstances to which these policies could reasonably be held to apply is that the recreational or sports facility consisted entirely in the use of a building that has now been demolished."
    [emphasis added]
  40. Ms Sargent relies on the test set out at [19] that the site has not been rendered incapable of the playing field use. However, I note that the context for this comment was entirely different from the present.
  41. She refers to the fact that in all the Council's documentation resisting the claim, namely the Summary and Detailed Grounds of Resistance and Mr Flanagan's Skeleton Argument, the Council has not sought to rely on the formulation set out in OR1. Instead, the Council now contends for a different and broader interpretation of the term "existing", namely "a use which is still subsisting or where the disuse is not so permanent as to preclude application of that word", see para 10 of the Council's Skeleton Argument.
  42. Mr Flanagan submits that the issue is not one of interpretation of the policy but rather of its application, and therefore falls on the wrong side of the Tesco v Dundee line. He refers to Lord Carnwath at [22]-[24] of R (Hopkins Homes) v Suffolk Coastal DC [2017] UKSC 37:
  43. "22. The correct approach to the interpretation of a statutory development plan was discussed by this court in Tesco Stores Ltd v Dundee City Council (ASDA Stores Ltd intervening) [2012] UKSC 13; 2012 SLT 739 Lord Reed rejected a submission that the meaning of the development plan was a matter to be determined solely by the planning authority, subject to rationality. He said:
    "The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others … policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context." (para 18)
    He added, however, that such statements should not be construed as if they were statutory or contractual provisions:
    "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 ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 , 780 per Lord Hoffmann) …" (para 19)
    23. In the present appeal these statements were rightly taken as the starting point for consideration of the issues in the case. It was also common ground that policies in the Framework should be approached in the same way as those in a development plan. However, some concerns were expressed by the experienced counsel before us about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself (see paras 27ff below). This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader. Some further comment from this court may therefore be appropriate.
    24. In the first place, it is important that the role of the court is not overstated. Lord Reed's application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any "suitable site" within or linked to the existing centres (para 5). The short point was the meaning of the word "suitable" (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed identified as one of textual interpretation, "logically prior" to the exercise of planning judgment (para 21). As he recognised (see para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis."
  44. OR1/7.14 and 7.15 must be read in the context of the other parts of OR1, in particular 7.9 where it is made clear that the decision as to whether Policy I2 is applicable is a matter of planning judgement.
  45. The question of whether something is an "existing" sports field or facility is necessarily a matter of planning judgement. The word "existing" in the policy is not amenable to one precise definition or a specific temporal limitation, and the Officers' advice fell well within the proper interpretation of the policy and was not misleading.
  46. Mr Flanagan submits that the DMPO requirement to consult Sport England if the use was subsisting within the previous 5 years simply drew the line at that point. That did not mean that the word "existing" necessarily placed a temporal limitation of 5 years.
  47. In my view there was a material misdirection in respect of Policy I2. I accept that what is an "existing" use necessarily involves a considerable degree of planning judgement. However, the advice given to members was unequivocal, the Policy did not apply because the Site was not an "existing use" applying the test of quite recent use or it being simple to bring back into use. OR1 at 7.14 was applying a rigid interpretation of policy which the words do not bear, contrary to the principles set out in Tesco v Dundee.
  48. Although the earlier paragraph at OR1/7.9 suggests that there was a planning judgement for members, the way the OR is structured members were being given quite clear and unequivocal advice - the matter was not being left to them as an issue for their judgement. It is clear that reading the Policy as a whole, and with its planning purpose in mind, "existing" use does not actually mean that the use must be subsisting at the time. This much the Council has accepted and necessarily follows from the analogous words in the NPPF para 103(c) that refer to "former use".
  49. I agree with Ms Sargent that it is noteworthy that Mr Flanagan's Skeleton Argument, and all the Council's pleadings do not seek to rely on the words in OR1/7.14 but instead refer to a situation where the loss of the use is not so permanent that the word "existing" could no longer apply. This is a very different interpretation of "existing" from that in OR1. If members had been advised that that was the meaning of "existing" then in my view they could have reached a different conclusion.
  50. In my view there was a material misinterpretation of Policy I2 at OR1/7.14. I therefore allow Ground One.
  51. Ground Two

  52. Ms Sargent submits that the decision that the Site was not an "existing" sports or recreational facility was irrational. She relies on R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 at [98] where the Divisional Court said:
  53. "98. The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of "irrationality" or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is "so unreasonable that no reasonable authority could ever have come to it": see Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 , 233-4. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 , 175 (Lord Steyn). The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it - for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Factual error, although it has been recognised as a separate principle, can also be regarded as an example of flawed reasoning - the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker's reasoning: see E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 "
  54. Ms Sargent submits that there was a "serious logical or methodological" error in OR1/7.14 and 7.15 when at 7.15 it said that the sports field could be simply brought back into use but had apparently rejected that position in 7.14. This focuses on the fact that OR1 was considering the two parts of the use together, i.e. the playing fields and the pavilion, rather than disaggregating them.
  55. She further said that there was a lack of logic in OR1/7.93 and OR1/7.95 where there was reference to the loss being "mitigated" when there was, on the basis of the earlier part of OR1, nothing to mitigate.
  56. Further, she submits that there is pure Wednesbury (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 22) irrationality, in the sense that no reasonable Council could have found that the playing fields were not an existing sports field in the light of the photographs and the site visit. The two playing fields are regularly mowed, the cricket square is still separately mowed, and the football field has goal posts erected.
  57. Mr Flanagan submits that what is an "existing" facility is a matter of planning judgement. The members had the benefit both of local knowledge and of a site visit. They were aware that there had been no formal use of the site since June 2017.
  58. I reject this Ground and do not consider that it is arguable, essentially for the reasons advanced by Mr Flanagan. There was no lack of logic in the approach in OR1/7.15 to consider the sports fields and the pavilion as one unit rather than disaggregating them. It will virtually always be the case that a sports field is relatively easy to bring back into use. Therefore if the test was solely how easy it was to bring that part of the Site back into use, it would be very unlikely to be met. In those circumstances it was reasonable to place reliance on the period of time since the use ended, rather than the ease or otherwise of putting the sports field back into use.
  59. In my view the reference to mitigation is an example of excessive forensic scrutiny. It is clear what the OR meant if the paragraphs are read as a whole, even if it was somewhat clumsily expressed.
  60. In respect of the alleged Wednesbury irrationality given the appearance of the playing fields, this turns on the same issue as above. The Council had chosen to continue to mow the playing fields, so they still looked like playing fields. But it was open to the Council to consider the length of time they had not been used, subject to Ground One and the members being properly directed on the Policy, rather than simply on the appearance of the Site.
  61. I therefore reject this Ground.
  62. Ground Three

  63. This Ground focuses on Policy I3. That states as relevant:
  64. "The council will resist proposals for the change of use of community buildings and facilities for which there is a demonstrable local need, unless the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location. In considering applications for alternative development or uses, the council will consider the viability of the existing use, that the site/use has been marketed for a minimum period of 12 months at a price commensurate with its use together with proof there has been no viable interest, marketing of the building or facility at a price commensurate with its use, the presence of alternative local facilities and the community benefits of the proposed use…".
  65. The simple point under this Ground is whether the Committee were materially misled because they were not told in OR2 that the Parish Council had made a bid for the site to allow it to be reused as a sport and community facility, and had not assessed this proposal against the terms of the Policy. They failed to properly consider Policy I3 and the tests within it.
  66. Mr Flanagan submitted that the principal policy relevant to this application was I2 and Policy I3 was of limited significance. However, I note that the ORs both make reference to I3 and it was plainly treated as being relevant by the Officers. The site was an ACV and therefore undoubtedly fell within the policy.
  67. In OR1 the position in relation to I3 is referred to at 7.10, 7.18-20 and 7.89 and 7.93. The latter two paragraphs stated:
  68. "7.89 The principle of the development of this site has been set out in detail above and is not repeated here. It is accepted by Officers that the closure of the site was brought about due to the site being unviable and lack of a viable proposal by others to continue the use of the site in this way. The necessary local plan policy and NPPF guidance in this matter I considered to have been adequately addressed above.
    …
    7.93 The proposed sports facilities to be provided in the southern field are to be used by Booker Park School. A representation received on behalf of the school has confirmed that the school would be happy to commit to taking on responsibility for the operation and management of the playing field and that it would be available for community use outside of school hours and with competitive pricing to encourage community access and use of the facilities. In addition, they can ensure access and free parking for users of the pitch facilities within the school premises to avoid on street parking and disturbance in the local area. Whilst it is acknowledged that scale of the sports facilities would significantly diminish from what could be provided on the site with the appropriate investment, it is clear that this is unlikely to happen at the current time. The provision of the sports pitch would enable some sports usage to be retained for the community, albeit outside of school hours. A planning condition could ensure that a community use agreement is in place and the facilities available for use, once the development is completed."
  69. At the time of OR1 there had been no recent interest in the Site. However, on 29 February 2024 the Parish Council submitted a formal offer to purchase the site ("the Bid") and to use it for the purpose of a sports and recreational facility. The Bid explained (inter alia) that the Claimant had the funding available both to purchase the land and to refurbish the Site; and that it had "a convincing plan for running the site both from a financial point of view and an operating model which has been trialled and successfully delivered in other Parishes". The Bid also explained that it was based on a formal "Red Book" valuation of the Site. The Bid was sent to the Council's Property Department and apparently no notification was given to the Planning/Development Control officers.
  70. OR2 at paragraph 11.1 stated:
  71. "The applicant has provided some further clarification regarding whether an offer has been made for the site by Stoke Mandeville Parish Council. The applicant has commented that the decision on how to progress the site (i.e. whether to develop the site should permission be gained or sell it to a local community group) will be made by Buckinghamshire Council Cabinet in due course. The approval of this planning application does not commit Buckinghamshire Council to any decision on the future of the site and that it remains open to the Council to consider any offers or proposals it receives for the site. The applicant further advises that the officers dealing with this site on behalf of the applicant have met with officers from the Parish Council on many occasions and regularly since 2021. The most recent meetings were in February, March and June 2023. The Parish has been invited to make a proposal for its preferred use, which can be evaluated against any other proposals or proposed uses when a decision is made by Buckinghamshire Council Cabinet. The applicant has also commented that it should be noted that under the Asset of Community Value Regulations, the applicant is required to offer the site to local community groups for a six month period prior to the disposal of the site. Therefore, it is not necessary for the Parish Council to make an offer prior to the determination of the planning application".

    It appears that the Officer who wrote the report was simply unaware of the fact that the Bid had been made by the Parish Council.

  72. There is a transcript of the 9 May 2024 Committee meeting and it is apparent from that transcript what happened at the meeting. Cllr Newcombe asked the Council's planning case officer for the Application (Mrs Sue Pilcher) for confirmation that para 11.1 of OR2 "remains an accurate statement of the current state of affairs". Mrs Pilcher confirmed that her understanding was that it did, and that the information reported in para 11.1 of OR2 had been provided by the applicant (the Property Department of the Council). Cllr Newcombe then informed Mrs Pilcher that the Bid dated 28 February 2024 had been submitted by the Claimant and Mrs Pilcher replied that she had not been aware of the Bid
  73. Cllr Newcombe explained that he had become aware of the Bid that morning because it had been emailed to him but that it did not appear to have been emailed to any other member of the Committee. Ms Katherine Stubbs, the Council's Senior Solicitor, then (erroneously) advised the Committee that the Bid was "irrelevant to this as a planning application" and positively advised the Committee (again erroneously) that the Bid was not a material planning consideration. She continued:
  74. "The fact of the matter is, that whether the department has told us that there is a bid or not, is not relevant to the determination of this application, because somebody can make a planning application on a site they don't even own. It's a question of [interjection from Cllr Newcombe] The question whether or not it's an asset of community value is a different issue, and the question of the sale of a community asset of community value, would be dealt with separately from the planning process. And so therefore, whether there has been or has not been a bid or an offer or whatever for the ownership of the site, is not relevant to the determination of the application before you".
  75. Ms Sargent raises a number of discrete points under Ground Three. I will deal with them in turn. Firstly, she submits that OR1 was materially misleading because the discussions that took place within the Council as to whether the Sports and Leisure Club use could continue in 2017-2018 did not amount to 12 months marketing as was required by Policy I3. Further, even if those discussions could be described as "marketing" they were accepted by the Council as having been flawed, which is why a further period was allowed. However, that further period was only for three months, so could not itself amount to the 12 months marketing required by the Policy I3.
  76. I do not accept this submission. The term "marketing" in the policy has to be considered in its context. The purpose of the policy is to ensure that genuine efforts are made to preserve the existing use, and any application for change of use of the land should only be permitted when a genuine viability exercise has been undertaken. A community sports and recreational facility may have very little market interest, so the best way to test the broader "market" may well be to discuss continuing the use with the local stakeholders. That is what the Council did in 2017-2018, having extensive discussions with the Club about whether it would be possible to continue the use. In my view those actions accord with the spirit and purpose of the policy, even if not with its strict words. Policies are not and should not be interpreted as statutes. The Council's approach fell well within the meaning of the policy. If that was the only issue, I would have found that there had been no material misdirection.
  77. In my view Ms Sargent's second point is much stronger. She submits that OR2 was misleading because a bid had been made and this was not brought to the members' attention and properly considered. One of the questions under Policy I3 is whether there is a "viable interest" in the site to preserve it for its existing use. Therefore the fact that a bid had been made, which the Parish Council certainly thought was viable, was a highly relevant fact. The Bid had not been assessed and was a wholly different offer from what had been appraised by Savills in 2018. However, the members were told in very clear terms that the fact of the Bid having been made was not relevant to their determination of the planning application.
  78. Mr Flanagan submits that the ORs carefully applied Policy I3 and reach reasonable conclusions that it had been complied with. There are four criteria in the policy – viability, marketing for 12 months, presence of alternative local facilities and a community benefit from the proposed use. The Claimant challenges on viability and marketing. In relation to marketing Mr Flanagan submits, as I have accepted above, that the consideration in 2017 in substance met the requirements of the policy.
  79. In relation to viability, Mr Flanagan refers to the Savills report of September 2017 which analysed the viability of the proposal in detail and calculated a significant deficit. He submits that the fact of the 2024 Bid from the PC does not undermine the conclusions on viability in the ORs because the viability of future sports and leisure use had been thoroughly considered in the 2017 report. There was therefore nothing to show that there was a viable proposal in 2024, as required by the Policy.
  80. He submits that there are two separate processes. Firstly, the development control decision making in which the Council had the evidence on viability which they could reasonably rely upon. Secondly, the property and landholding decision making where the new Bid was relevant and would be properly considered. The existence of a late bid cannot undermine the reasonable conclusions of the ORs.
  81. In my view it is clear that OR2 was materially misleading in respect of one of the criteria in Policy I3. In determining whether to allow the change of use of the Site from a community and recreational facility to a housing site with some recreational land, it was plainly relevant under Policy I3 to decide whether there was viable interest in the Site. The members were not told in OR2 that there had been a recent bid from the Parish Council. When it was brought to their attention by Cllr Newcombe they were told by the officers that the Bid was not a relevant consideration, which was plainly wrong.
  82. Further, that Bid had not been assessed as to its viability. It is not realistic for Mr Flanagan to say that the Council could rely on the assessment of viability in the Savills report of 2017 for determining the viability of maintaining the use 7 years later, with a different offer being put forward. The Savills assessment was in respect of a different bid which had been made many years earlier. Importantly, the Parish Council say that they have secured a grant of approximately £800,000, which makes a material difference to any assessment undertaken in 2017.
  83. For this reason the members were materially misled in two regards. They were not told in the OR2 that there had been a bid and there was no appraisal of the viability of that Bid. Further, they were advised that the Bid was irrelevant to their determination, but that was not correct given that Policy I3 was accepted to be a relevant policy.
  84. I therefore find that Ground Three has been made out.
  85. For these reasons the decision must be quashed and the application redetermined.

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