Town and country planning – Planning permission – Tourist development – Listed building – Claimant challenging decision of defendant local authority to grant planning permission for tourist development in country park – Whether officer’s report materially misleading defendants as to the extent of site benefiting from existing planning permission – Whether officer’s report misapplying core strategy – Whether officer’s report failing properly to apply statutory test in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and paragraph 134 of National Planning Policy Framework (NPPF) – Application dismissed
The claimant, which represented an unincorporated group of local residents, challenged the decision of the defendant local planning authority to grant the first interested party planning permission for 90 holiday lodges, ten touring units and ten camping pods with associated infrastructure at land at Brokerswood Country Park, Brokerswood Road, Southwick, Wiltshire owned by the second interested party. The site formed part of the country park, which comprised 30 hectares of woodland and had been operating as a visitor attraction since 1968. Adjacent to the site was a Grade II listed church. The country park grounds were open to the general public for 364 days per year. Various facilities for visitors had been constructed, largely to the north of the existing site but on land under the same ownership and control, including a reception, shop, café, washing facilities, a museum building, large storage building and a small gauge railway with track, station, shed and two platform areas.
The claimant contended that the officer’s report had: (i) materially misled planning committee members in relation to the extent of the site benefiting from existing planning permission; (ii) misinterpreted and misapplied policy CP39 of the Wiltshire Core Strategy, which concerned tourist development; and (iii) failed properly to consider and apply the statutory test required by section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and paragraph 134 of the National Planning Policy Framework (NPPF) in relation to the setting of the church.
Held: The application was dismissed.
(1) On the evidence, it was not arguable, either seriously or at all, that the planning committee members could have been misled, or had been in any way unclear, with regard to the position following earlier permissions as accurately set out in the officer’s report: R (Mid Counties Co-operative) v Forest of Dean District Council [2014] EWHC 3059 (Admin); [2014] PLSCS 259 applied.
(2) The application for planning permission was in respect of tourist development and fell to be determined by reference to policy CP39, under which extensions to existing facilities had to be appropriate in scale to their location and help to ensure the future viability of the business. In the present case, the use of the existing site was as a site for caravans and tents as tourist development and the proposal was for a site for caravans (in the form of holiday lodges) and tents as tourist development but on a site comprising both the existing site and an additional area. In planning terms, that was an extension of the existing facility. In any event, whether the proposed changes would in fact amount to a change of use was a matter of planning judgment for the officer and, ultimately, for the committee. In coming to a conclusion, they had to take into account the fact that it was proposed to make changes which would have been eminently clear to the officer and the committee members. Although a matter for them, given the incidental nature of the changes, in the light of the authorised use for caravans and camping, it was unsurprising that they considered that not to be a change of use. It was inevitable that the extension of an existing facility would require a change of use for the extended area. However, the proposed change of use could not have been made clearer from the officer’s report, the site visit and the officer’s presentation to the committee meeting. Although not determinative, policy CP39 was an “exception policy”, which lay outside the regular policies for (e.g.) homes and employment land; and for which development was said to be permitted outside the identified limits of development (policy CP2).
(3) When considering the impact of the proposed development on the setting of the church, the officer’s report and the committee had properly applied the criteria set out in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (which required special regard to be paid to the desirability of preserving a listed building and its setting which had to be given considerable importance and weight) and paragraph 134 (which provided that where a development proposal would lead to less than substantial harm to the significance of a designated heritage asset, that harm should be weighed against the public benefits of the proposal, including securing its optimum viable use).
Although the officer’s report did not expressly refer to the evidence of the conservation officer that the proposed development would cause some harm, the law did not require the officer’s report to be perfect: it had to be clear and full enough to enable the committee members to understand the issues and make up their minds in an appropriately informed way. The officer’s report was not legally deficient: it was adequately clear and full enough on that issue. The report did not misrepresent the conservation officer’s report but rather summarised it, as the planning officer was entitled to do. She was entitled to reach a different conclusion from that of the conservation officer, which was not entirely surprising given that the conservation officer only put the harm at the minor end of the scale. The committee members had available the conservation officer’s report if they thought there was any lack of clarity or doubt. Read fairly and as a whole, the planning officer’s report permitted no forensic doubt that it was the officer’s opinion that there would be no harm to the significance of the heritage asset, a conclusion which the committee was entitled to adopt. In the light of that conclusion, there was no room for the application of paragraph 134 of the NPPF: The Bath Society v Secretary of State for the Environment [1991] 2 PLR 51, Morge v Hampshire County Council [2011] UKSC 2, Barnwell Manor Wind Farm Energy Ltd v East Northamptonshire District Council [2014] 2 EGLR 85; [2014] EGILR 23, R (on the application of Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin); [2014] PLSCS 182, Jones v Mordue [2015] EWCA Civ 1243 and Palmer v Herefordshire Council [2016] EWCA Civ 1061; [2016] PLSCS 296 considered.
Peter Goatley (instructed by Irwin Mitchell LLP) appeared for the claimant; Toby Fisher (instructed by Wiltshire Council Legal Services) appeared for the defendants; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
