Villagers who claimed a council allowed a developer to buy planning permission by paying almost £4m to a neighbouring mushroom farm have lost a high court challenge to the decision.
Lindblom J upheld the permission under which Abingworth Developments intends to build 146 dwellings, including for the open market, 51 homes for the 55–plus age group, 12 affordable homes, 20 key worker properties, and other facilities including a village hall with a shop and doctor’s surgery on the Abingworth Nurseries site at Storrington Road, Thakeham, West Sussex.
As a condition of its permission, granted in April 2013, it entered into a section 106 agreement to pay £3.75m and transfer more than 30ha of land to Monaghan Mushrooms, which will operate the mushroom farm approved at the same time.
Thakeham Village Action, a conservation body opposed to the residential development, claimed that Horsham district council wrongly approved it on the basis of the section 106 agreement, which it branded as an attempt to buy planning permission. The section 106 planning obligation requiring the residential developer to pay £3.75m to the occupier of another site to subsidise that company’s business, which the council had referred to throughout as “enabling development”.
But the judge ruled that the council made no error of law when it took into account the payment that the development on site A would yield as a subsidy for the development on site B.
He said: “This was not, in my view, an immaterial consideration. The two proposals were mutually dependent. They were, in effect, a comprehensive scheme for the redevelopment of both sites. The connection between them was a matter of economic reality. The consolidation of the mushroom operation on site B would not be achieved unless the development proposed on site A was permitted.”
He rejected additional claims that the council wrongly failed to require an environmental impact assessment prior to the grant of permission for a large housing development that will increase the size of the village by more than 50%, and wrongly failed to take the development plan into account.
He said: “In this case I find it impossible to conclude that the council’s screening opinion for the proposed redevelopment of site A breached any relevant principle of law. This was, from the outset, a scheme of two linked proposals. They were, in effect, a single project of redevelopment for two sites that had for many years been owned and operated as a single commercial concern.
“Thus, before the planning permission challenged in this claim was granted – on 19 April 2013 – the two proposed developments had both been screened, albeit in separate screening opinions, on the basis that together they formed a comprehensive scheme. This seems to me to have been an entirely realistic approach. Indeed, any other approach would have been wrong.
“I cannot accept that the council was unable reasonably to conclude, when it issued its screening opinion for the site A proposal in March 2010, that there were not likely to be any significant effects on the environment.”
In its reasons for granting permission, the council concluded that the proposals are in the long-term interests of the community and ensure that a significant local business modernises its operations with anticipated reduction in odour and protection of existing and future employment opportunities, supporting the local economy and meeting requirements for residential accommodation.
R (on the application of) Thakeham Village Action Ltd v Horsham District Council Administrative (Lindblom J) 6 November 2013
Robert Fookes (instructed by Fortune Green Legal Practice) for the Claimant
Reuben Taylor (instructed by the Council Solicitor of Horsham District Council) for the Defendant
Rupert Warren Q.C. (instructed by Pittmans LLP) for the First Interested Party
