Town and country planning – Residential development – Former school site – Respondent council granting planning permission for residential development on site and identifying it as strategic housing site in core strategy – Whether site to be retained for school uses – Whether respondents erring in adopting core strategy without taking into account as “reasonable alternative” proposals for relocation of another school to the site – Whether erring in granting planning permission without requiring replacement of school facilities – Appeal dismissed
In December 2010, the respondent local planning authority granted planning permission for a mixed-use development, including 198 dwellings, a care home and a sports pitch, on the site of a former convent school in Chalfont St Pater, Buckinghamshire. In November 2011, the respondents adopted, following examination by an inspector, a core strategy that identified the convent school site as one of three strategic housing sites in their area.
The respondents’ decisions effectively ruled out proposals by the appellant parish council to relocate a local Church of England school to the site in order to resolve problems of overcrowding and inadequate facilities. The appellants brought proceedings to challenge both decisions, by way of a statutory challenge to the core strategy under section 113 of the Planning and Compulsory Purchase Act 2004 and a judicial review of the grant of planning permission.
In the section 113 application, the appellants challenged the respondents’ conclusion that the relocation plan was an impractical aspiration, which they were not required to consider as a “reasonable alternative” in the preparation of the core strategy and thus were not obliged to subject to a sustainability appraisal under Article 5 of Directive 2001/42/EC and Regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004. The appellants maintained that the plan could be realised, despite the local education authority’s stated unwillingness to contribute to the cost, by a “land swap” under which the Church of England school’s existing site could be sold for development to finance the new project.
In the judicial review, the appellants contended that the respondents’ grant of planning permission was vitiated by errors of fact as to the extent of the playing fields on the convent school site for the purpose of an applicable local plan policy. They further contended that the respondents had erred in finding the development to be compliant with policy CSF2 of the local plan, which militated against development resulting in the loss of community services or facilities on a site unless either a replacement could be provided in an equally convenient location or the service or facility was no longer needed. The appellants contended that the policy required a like-for-like replacement of a community service or facility on the site.
The appellants’ claims were dismissed in the court below: see [2013] EWHC 2073 (Admin); [2013] PLSCS 211. The appellants appealed.
Held: The appeal was dismissed.
(1) Although the directive and the 2004 regulations required a sustainability appraisal with a consideration of reasonable alternatives at each stage of the core strategy’s development, the respondents had been entitled to find that the appellant’s land swap proposal did not meet the low threshold for consideration as a reasonable alternative. It was significant that the education authority for the area considered there to be no need for a new school and was unwilling to provide funding to facilitate the proposed land swap. The need for all the finance to come from other sources was highly significant in assessing whether the land swap proposal was a “reasonable alternative”. The position of the education authority meant that any swap would have to be a private arrangement with the owners of the convent school site, but there was no indication that the owners would agree to such arrangements. Nor was there any business plan in place for the alternative source of funding that would be required for the land swap proposal to get off the ground and to be more than an aspiration. Moreover, there had been no assessment of the housing capacity of the Church of England school site, or of the impact of the land swap proposal on the number of new dwellings on the convent school site, such as would permit an assessment of the value of the site if used for residential housing. Those factors justified the respondents in concluding that the land swap proposal was not a reasonable alternative and they were not obliged to subject that proposal to a sustainability appraisal. Further, the inspector who examined the core strategy had made it clear that he considered the land swap proposal to be unsound because of the education authority’s position. Although he had failed to address the appellants’ qualitative case for the proposal, that did not affect the cogency or lawfulness of his substantive decision. Any inadequacy in his reasons had not caused substantial prejudice to the appellants.
(2) A mistake of fact would give rise to a ground of challenge in public law where: (i) there was a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; (ii) the fact or evidence had been established, in the sense that it was uncontentious and objectively verifiable; (iii) the party bringing the challenge, or its advisers, had not been responsible for the mistake; and (iv) the mistake had played a material, although not necessarily decisive, part in the reasoning behind the decision under challenge: E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 and R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330 applied. There had been no mistake of that kind in the instant case. Whether a particular open space was a “playing field” within the local plan policy was a matter requiring the exercise of judgment by the relevant planning authority in an evaluative exercise. Although that in itself would not be fatal to establishing a mistake of fact, caution was needed in the planning context. In the instant case, there was conflicting evidence on the playing field issue and the resolution of that matter was classically a matter for the determination of the primary decision-maker. The respondents could not be said unequivocally to have misunderstood the facts. Neither the second nor the first requirements for a challenge based on a mistake of fact were made out. In the absence of irrationality or perversity, it was for the respondents to decide the extent of the playing fields on the convent school site and their decision on that matter was clearly open to them on the material before them: MT (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808 applied.
(3) While the members of the court differed as to the proper interpretation of policy CSF2 of the local plan with regard to the replacement of facilities that were still needed, they agreed that the requirements of the policy were met in the instant case because the convent and school buildings, at they stood at the date of the decision, were no longer required for the existing use or for any other community.
Ian Dove QC (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellants; Morag Ellis QC (instructed by Sharpe Pritchard) appeared for the respondents; Mark Lowe QC and Asitha Ranatunga (instructed by Pothecary Witham Weld) appeared for the interested party.
Sally Dobson, barrister
