Town and country planning – Planning permission – Neighbourhood development plan – Area of outstanding natural beauty – Defendant local planning authority granting planning permission for use of walled garden as public commercial garden – Claimant applying for judicial review – Whether defendant correctly assessing impact of development on openness of garden – Whether defendant applying correct test to impact of development on AONB – Claim dismissed
The claimant applied for a judicial review of the decision of the defendant local planning authority to grant planning permission to the interested party for the proposed use of a walled garden as a public, commercial garden and café at the Walled Garden, Duke Street, Padstow.
The garden contained several heritage assets, including the wall itself, which was Grade II listed, and a stone building known as the Bothy. The garden was not currently cultivated. It comprised some 3,500 sq m and was situated on an elevated site on the outskirts of Padstow and was visible from many parts of the town.
The garden fell within an area of outstanding natural beauty and a conservation area. It was designated as local green space within the neighbourhood development plan.
The claimant argued that, when applying the relevant NDP policy, in particular to what amounted to “inappropriate development”, the delegated officer failed to take into account paragraphs 146 and 147 of the National Planning Policy Framework and assess the impact of the development on the openness of the garden. Further, the delegated officer failed to apply the correct test to the impact of the development upon the AONB by acknowledging harm from the visual intrusion to the landscape by the introduction of the public and café/shop use and inappropriately offsetting that harm with alleged heritage benefits.
Held: The claim was dismissed.
(1) Decision-makers were assumed to have a working knowledge of the statutory tests and the court would not readily draw an adverse inference that they acted unlawfully. The court would not lightly accept an argument that an inspector had proceeded on a false interpretation of national planning policy or guidance: South Buckinghamshire v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 and R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin); [2017] PLSCS 9; [2017] 2 P & CR 65 considered.
The interpretation of planning policy, whether in the development plan or in statements of national policy, was ultimately a matter for the court. When the meaning and effect of a planning policy were contested, the court had to avoid the mistake of treating the policy in question as if it had the force or linguistic precision of a statute and had to bear in mind that broad statements of policy did not lend themselves to elaborate exegesis. The court’s task was to discern the objective meaning of the policy as it was written, having regard to the context: Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610; [2018] PLSCS 61 considered.
(2) Paragraph 101 of the NPPF provided that policies for managing development within a local green space should be consistent with those for green belts.
The ordinary meaning of “consistent” was “agreeing or according in substance or form; congruous, compatible”. That meant that national planning policy provided that policies for managing land within a local green space should be substantially the same as policies for managing development within the green belt. Paragraph 133 stated that the fundamental aim of green belt policy was to prevent urban sprawl by keeping land permanently open; the essential characteristics of green belts were their openness and their permanence: R (Lochailort Investments Ltd) v Mendip District Council [2020] EWCA Civ 1259; [2020] PLSCS 179 considered.
The concepts referred to in NPPF policy for the green belt were not concepts of law. They were broad concepts of planning policy, used in a wide range of circumstances. Where a question of policy interpretation properly arose, understanding those concepts required a sensible reading of the policy in its context, without treating it as if it were a provision of statute. Applying the policy called for realism and common sense: Hook v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 486; [2020] PLSCS 58 considered.
(3) “The concept of “openness” in paragraph 90 of the NPPF naturally read as referring back to the underlying aim of green belt policy: “to prevent urban sprawl by keeping land permanently open …”. Openness was the counterpart of urban sprawl and was also linked to the purposes to be served by the green belt: R (on the application of Samuel Smith Old Brewery) v North Yorkshire County Council [2020] UKSC 3; [2020] EGLR 13 considered.
Reading the officer’s report fairly, as a whole and applying common sense, there were adequate indications to show the broad concept of openness was firmly in mind. The references to the local green space designation and the reasons for it, the fact it provided a verdant backdrop and the reference to open space in the report all supported that conclusion.
(4) There were many references to the NPPF in the report, although not to those dealing with the green belt. The concept of “green space” itself suggested an element of openness. In any event the planning officers were to be taken to be familiar with the NPPF, including those paragraphs relating to the green belt, unless there was an indication to the contrary, and there was none in the officer’s report.
The particular change of use permitted in this case, as limited by the conditions, might, as a whole, be taken as recreational despite the commercial element. Even if that was not so, it was not difficult to see why the officer concluded that it was not inappropriate for this local green space.
(5) Reading the officer’s report fairly and as a whole, the assessment of the impact of the proposal on the AONB disclosed no legal error. The policy background was accurately set out. Great weight was attached to preserving the AONB and, in that context, the verdant nature of the garden was referred to. The officer was entitled to conclude that the benefits of the proposal to the AONB, including the preservation of the garden, far outweighed the minor harm.
Celina Colquhoun (instructed by Addleshaw Goddard) appeared for the claimant; Sancho Brett (instructed by Cornwall Council Legal Services) appeared for the defendant; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Padstow Conservation Area Protection Group v Cornwall Council
