Town and country planning – Planning permission – Playing fields – Claimant applying for judicial review of decision by defendant local authority to grant planning permission for primary school – Whether defendant misinterpreting para 74 of National Planning Policy Framework (NPPF) – Whether defendant failing to determine lawfully weight to be afforded to emerging local plan – Whether defendant failing to consider alternative sites and/or misdirecting planning committee – Whether defendant granting permission in breach of delegated authority – Application dismissed
The claimant applied for judicial review of the decision by the defendant local authority to grant planning permission for the erection of a primary school, with associated multi-use games area and parking facilities on part of Mapledurham Playing Fields, a recreational space in Caversham, Reading. The claimant was the chairman of an action group created in 2005 to protect the playing fields as a public green open space for future generations.
The claimant argued that the grant of planning permission was unlawful because the defendant had: (i) misinterpreted para 74 of the National Planning Policy Framework (NPPF) by advising that the quantitative loss of open space might be outweighed by qualitative improvements to the remaining space; (ii) failed to apply para 216 and determine lawfully the weight to be afforded to the emerging local plan; (iii) failed to consider alternative sites and/or misdirected members in advising them that alternative sites could not be considered; and (iv) granted the permission in breach of delegated authority.
The playing fields were an area of approximately 11 hectares and were highly valued by local people and regularly used for a wide range of leisure and recreational pursuits.
Held: The application was dismissed.
(1) Paragraph 74 required that, where open space land was to be built upon, the loss would be replaced by equivalent or better provision. Whether or not the provision was equivalent or better had to be judged in terms of both quantity and quality. The word “and” simply made clear that both quality and quantity were relevant parameters in judging whether provision was equivalent or better. The overall requirement was that the open space land lost had to be made up for; whether or not that requirement was met was a matter of planning judgment, having regard to both the quantity of what was to be provided and the quality, but allowing (in an appropriate case) for one to be set off against the other. In the present case, great weight had been attached to the fact that a new primary school was required in assessing the planning application, in accordance with Government guidance on school provision and the more general requirement for local planning authorities to be positive and proactive.
(2) Applying the legal principles in respect of challenges to officer reports, the court did not accept the claimant’s submission that the committee must have overlooked para 216 of the NPPF because it was not expressly referred to in the list of relevant NPPF provisions. It was appropriate for the officer’s report to flag up the substantive policy provisions, but it was not necessary for the report to set out every general provision in the NPPF which applied to the application. Planning officers and members could be assumed to have a working knowledge of the NPPF, in particular, Annex 1 on Implementation; which had applied to every application for planning permission submitted to the defendant since 2012. Moreover, as the defendant was engaged in the lengthy process of preparing a new local plan, it was highly likely that para 216 on emerging plans would have been drawn to the committee’s attention on many previous occasions. The advice in the officer’s report was both adequate and lawful. Paragraph 216 did not prescribe any particular weight to be given to an emerging policy at any particular stage. It was a matter of judgment, for the decision-maker, to decide how much weight should be accorded to it: R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) followed.
Applying the legal principles established in the case law on officer reports, the officer’s report had correctly advised on the development plan, and the material consideration of para 74 of the NPPF, in the context of this application: R (Turner) v Secretary of State for Communities and Local Government [2015] EWHC 375 (Admin); [2015] PLSCS 95 considered.
(3) The defendant did not act unlawfully by not considering the merits of the possible alternative sites when deciding the application for planning permission. This was not the type of exceptional case in which the defendant should or could have departed from the general rule that alternative sites were irrelevant when determining an application for planning permission. There was no statutory or policy requirement, either express or implied, to consider alternative sites. This was not the type of development which had such significant adverse effects that alternatives ought to have been considered. In the light of its findings that the loss of open space could be adequately compensated for, the defendant was entitled to conclude that the application was acceptable in planning terms and did not conflict with the development plan.
There was no obvious alternative which avoided the disadvantages of the proposed site: Greater London Council v Secretary of State for the Environment [1986] JPL 193, Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 2 EGLR 185, Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29, Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin), [2010] 1 P&CR 19 and R (Luton Borough Council) v Central Bedfordshire Council [2015] EWCA Civ 537; [2013] PLSCS 156 considered.
(4) The planning committee was not bound to follow the wording or content of the resolutions proposed in the officer’s report. As a matter of law, the minutes of the meeting which had been drawn up and then formally approved, stood as the record of the resolutions passed by the committee at the meeting. It was impermissible to seek to go behind the resolutions recorded in the minutes, and the resolutions which were passed, save in exceptional circumstances which did not arise here.
Katherine Barnes (instructed by Irwin Mitchell LLP) appeared for the claimant; John Hobson QC and Matthew Dale-Harris (instructed by Reading Borough Council) appeared for the defendant; Tim Buley (instructed by the Government Legal Department) appeared for the interested party.
Eileen O’Grady, barrister
