Council leasing golf course to company – Company carrying out extensive works to course – Applicant making complaints to council – Council refusing to issue enforcement notice against development – Applicant seeking judicial review of council’s decision – Application dismissed
The respondents were the owners of Abbey Hill Golf Course, Milton Keynes (the golf course), which was open to paying members of the public. In October 1993 the respondents decided to offer the lease of the golf course by open tender. A number of bids were received, including a bid from the applicant and from Greene King plc, which held a 99-year lease of the clubhouse buildings on the golf course granted previously by the council. In July 1995 the council accepted Greene King’s offer and in October 1995 they entered into a 125-year lease with Greene King. Subsequently, Greene King started to carry out works. The council’s officers accepted that the works, namely the creation of a new nine-hole family course and the variation of the 18-hole course, did not require planning permission. However, some of the officers concluded that the creation of five lakes on the course and a driving range did required permission. The applicant raised concerns about the safety of the golf course, with increasing numbers using it, and about the failure of the council to issue an enforcement notice against the works, which the applicant claimed required planning permission. The council officer investigating the applicant’s complaint concluded that the council had properly addressed the issues of the development proposals, planning enforcement action and safety. On February 5 1997 the council granted planning permission for the lakes and for the driving range. The applicant sought judicial review of the council’s decision that the works, apart from the lake and the construction of the driving range, had not required planning permission, and of the decision not to issue an enforcement notice. It was contended that the council’s failure to consider the question of enforcement properly or at all was demonstrated by the fact that the council’s attitude had been predetermined as a result of their contractual relationship with Greene King.
Held The application was dismissed.
1. It was impossible to draw the conclusion on the evidence that any undue favour had been extended to Greene King by the council, because of the contractual relationship between them. The council had dealt properly with the matters on planning grounds, and there were wholly insubstantial grounds for a conclusion that there was any improper predetermination.
2. Whether the works amounted to engineering works requiring planning permission had to be looked at in the context of the nature of the works being carried out, and the scale of the works was a material factor. On that basis it could be concluded that the works were an engineering operation requiring planning permission.
3. However, the council and their officers had concluded that nothing would be gained by any enforcement action and, in all the circumstances, the error made in determining whether planning permission was required was not an error which had a material bearing on whether enforcement action was required.
4. The council’s officers had been satisfied that a fence to protect the eighth and ninth holes was sufficient to satisfy safety requirements, and they had been entitled to reach that conclusion. Class A included development which could be recognised as a means of enclosure on the basis that it was enclosing and, therefore, the fence had been permitted development see Wycombe District Council v Secretary of State for the Environment [1995] JPL 223, not followed.
Peter Village (instructed by J Garrard & Allen, of Olney) appeared for the applicant; Timothy Straker QC and Thomas Cosgrove (instructed by Steele & Co, of Norwich) appeared for the respondent council.
