KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE KING (on the application of) STOKE MANDEVILLE PARISH COUNCIL |
Claimant |
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BUCKINGHAMSHIRE COUNCIL |
Defendant |
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Mr Hugh Flanagan (instructed by Buckinghamshire Council Legal Services) for the Defendant
Hearing date: 2 April 2025
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Crown Copyright ©
Mrs Justice Lieven DBE :
Grounds
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
"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."
The First Officer's Report (OR1)
"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. "
"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."
"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]
"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."
Ground One
"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".
"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]
"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."
Ground Two
"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 "
Ground Three
"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 ".
"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."
"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.
"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".