In R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567; [2014] PLSCS 138, a local amenity group applied successfully at first instance to quash the decision of the local planning authority (“LPA”) to grant planning permission for an exclusive private golf course, hotel, health club and spa on green belt land in Surrey.
A “saved” local plan policy – Policy REC12 – referred specifically to the development of golf courses. The local amenity group contended, inter alia, that (1) Policy REC12 obliged applicants proposing new golf courses to demonstrate that there was a need for further facilities and (2) the concept of “need” in the context of Policy REC12 could not simply be equated to “demand” in the private economic sense.
The court at first instance allowed the claim, holding that the LPA’s planning committee had erred in law, because it had misunderstood the meaning of “need” in this case. Had it understood the proper meaning of the word in the general and specific context, it could not rationally have concluded that that there was a need for the development.
The judge proffered the following principles. (1) Planning law is concerned with the regulation of the private use of land in the interests of the community as a whole. (2) Proof of private “demand” for exclusive golf facilities does not equate to “need” in the context of the development plan policy. (3) The word “need” means “required” in the interests of the public and the community as a whole. (4) It did not mean “demand” or “desire” by private interests.
The Court of Appeal allowed the appeals brought by the LPA and the developer, holding first of all that Policy REC12 – on its proper construction – contained no requirement to demonstrate need. Looking at the relevant statutory requirements and guidance in force at the time when the local plan was first adopted, it was necessary to distinguish between specific polices and their supporting text. The reference to “need” appeared only in the supporting text to Policy REC12, and while the supporting text was relevant to the interpretation of Policy REC12 it did not have the force of policy and could not “trump” Policy REC12.
The appeal judges then went on to hold that, if the above analysis should be incorrect, the first instance judge had adopted an unduly exacting and narrow interpretation of “need” in the context of Policy REC12. The term should be understood here in the broad sense, ie capable of being met by demonstrating an unmet demand for an elite facility of the kind proposed.
John Martin
