Planning application – Planning permission granted for exclusive golf club with hotel and spa facilities on land in protected landscape area – Whether developer demonstrating “need” for further golfing facilities in the area as required by applicable planning policies – Whether “need” shown where evidence of private demand for or viability of such facilities – Whether landscape impacts of development such as to require refusal of permission – Planning permission quashed – Appeal allowed
In September 2012, the appellant council allowed an application by the interested party for planning permission to develop a Grade II listed building and estate land to provide an exclusive private 18-hole golf course, hotel, health club and spa. The land lay within the green belt in the Surrey Hills near Leatherhead, in a designated area of great landscape value; part of it also fell within an area of outstanding natural beauty (AONB). The site also adjoined or included land that was designated of being of scientific, conservation or archaeological significance. In their reasons for the grant of permission, the appellants indicated that the development would meet a need for recreation facilities in the countryside and, overall, would achieve sufficient economic benefits and provide adequate environmental safeguards to outweigh any concerns. The grant of planning permission was contrary to the advice of the appellants’ planning officers.
The respondent campaign group brought judicial review proceedings to challenge the grant of planning permission. It contended that the development would damage a protected landscape of national importance and that no “need” for the golf facilities had been demonstrated, contrary to the requirements of a local plan policy “saved” by the secretary of state under the new planning regime of the Planning and Compulsory Purchase Act 2004.
Allowing the respondent’s claim and quashing the planning permission, the judge held that the word “need” meant required in the interests of the public and the community as a whole and that, in the context of the relevant planning policy matrix, proof of private demand for exclusive golf facilities did not equate to “need”. He further held that the appellants had falling into error when considering the landscape impact of the proposed development and that para 116 of the National Planning Policy Framework (NPPF), which imposed stringent tests for major development in designated landscape areas, applied to the proposed development: see [2013] EWHC 2582 (Admin); [2013] PLSCS 217.
The appellants appealed. They contended that a requirement to demonstrate need was not part of the saved local plan policy, appearing as it did only in the supporting text to that policy. They also challenged the judge’s approach to landscape impact.
Held: The appeal was allowed.
(1) In the light of the relevant statutory provisions and the guidance thereon, the correct focus when determining the conformity of a proposed development with a local plan was on the plan’s detailed policies for the development and use of land in the area. The supporting text consisted of descriptive and explanatory matter in respect of the policies or a reasoned justification of them. While relevant to the interpretation of a policy to which it related, the supporting text did not have the force of policy and could not trump the policy. It followed that a development that accorded with the policies in the local plan could not be said to conflict with the plan simply because it failed to satisfy an additional criterion referred to only in the supporting text, even where the local plan stated that the supporting text indicated how the policies would be implemented.
In the instant case, the saved local plan policy set out several criteria against which proposals for new golf courses were to be measured but contained no requirement to demonstrate need. Criteria in the policy relating to sustainability and to conserving and enhancing the existing landscape could not be equated with a requirement to demonstrate need. Even reading them in the light of the supporting text, no such requirement could be read into the criteria in circumstances where the reference to a need requirement had not been carried over into the terms of the policy itself.
(2) The provisions of the 2004 Act and the saving direction made under it served to underline, rather than to alter, that position. Although the saving direction had saved only the policies referred to in it, with the remainder of the local plan ceasing to have effect at the end of the transitional period, in doing so it had saved not just the bare words of the relevant policies but also any supporting text relevant to their interpretation; the relationship between the saved policy and its supporting text was therefore the same as it had been prior to the 2004 Act and the saving direction.
(3) In the light of the above, it was unnecessary to decide what was meant by “need” and whether the appellants could rationally have concluded that a need had been demonstrated. However, the better view was that the judge had adopted an unduly exacting and narrow interpretation of need so far as he had considered that it required applicants to demonstrate that further golf facilities were necessary in that part of Surrey in the interests of the public and the community as a whole. The word “need” was capable of encompassing necessity at one end of the spectrum and demand or desire at the other, depending on context. The saved local plan policy contained nothing to support the judge’s narrow interpretation. If, contrary to the court’s primary finding, any need requirement were to be read into the policy, it should be understood in a broad sense so that the requirement could be met by establishing the existing of a demand for the proposed type of facility that was not being met by existing facilities. The material before the appellants had been sufficient to enable them rationally to conclude that need in that broad sense had been demonstrated.
(4) The proposed golf course development was not a development to which para 116 of the NPPF applied so as to attract its stringent tests of exceptional circumstances and public interest imposed by that paragraph. Para 116 provided that permission should be refused for major developments “in” an AONB or other designated area except where the stated conditions were met. Although the golf course as a whole would be relevant for the AONB, including such matters as its impact on visual perspectives, it could not be described as being a major development “in” the AONB when only a small part, namely one fairway and one tee, would be within the AONB. The creation of one fairway and one tee could not be regarded as a major development in the AONB even when account was taken of the fact that they formed part of a larger golf course development, the rest of which was immediately adjacent to the AONB.
(5) While the appellants’ planning officers had given strong, evidence-based advice that the proposed development would have a detrimental impact on the landscape, they had not gone so far as to suggest that the expert evidence pointed unanimously and unequivocally in that direction. Notwithstanding that advice, it was open to the appellants rationally to conclude, as a matter of planning judgment and in the light of all the written material and their impressions from site visits, that the overall landscape character would not be compromised. They had understood and properly borne in mind the requirements of relevant planning policies, including the saved local plan policy and PPG 2 on development in the green belt, and had not fallen into error in their application. They had given an adequate summary of their reasons for granting permission.
James Findlay QC (instructed by Sharpe Pritchard) appeared for the appellants; Douglas Edwards QC and Sarah Sackman (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent; Christopher Katkowski QC and Robert Walton (instructed by Berwin Leighton Paisner LLP) appeared for the interested party.
Sally Dobson, barrister
