Chalfont St Peter Parish Council v Chiltern District Council Holy Cross Sisters Trustees Inc. (Interested Party in C1/2013/2479)

JurisdictionEngland & Wales
JudgeLord Justice Beatson,Lord Justice Briggs
Judgment Date28 October 2014
Neutral Citation[2014] EWCA Civ 1393
Date28 October 2014
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2013/2479; C1/2013/2567

[2014] EWCA Civ 1393

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

HHJ Richard Foster

[2013] EWHC 1877 (Admin); [2013] EWHC 2073 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lord Justice Beatson

and

Lord Justice Briggs

Case No: C1/2013/2479; C1/2013/2567

Between:
Chalfont St Peter Parish Council
Appellant
and
Chiltern District Council
Respondent

and

Holy Cross Sisters Trustees Inc
Interested Party in C1/2013/2479

Ian Dove QC (instructed by Richard Buxton Environmental and Public Law) for the Appellant

Morag Ellis QC (instructed by Sharpe Pritchard) for the Respondent

Mark Lowe QC and Asitha Ranatunga (instructed by Pothecary Witham Weld) for the Interested Party

Hearing dates: 7 and 8 July 2014

Lord Justice Beatson

I. INTRODUCTION

1

The questions in these two appeals concern a site in Chalfont St Peter in Buckinghamshire owned by Holy Cross Sisters Trustees Incorporated ("the Trustees"), a charity. Between 1928 and 2006 the site was used as a convent and a convent school. On 31 July 2006 the convent school closed because the Trustees considered that it required an unsustainable level of financial support at the expense of the Holy Cross Sisters' other charitable activities. The convent itself continues in a new building on part of the site.

2

At issue is whether in future part of the convent school site 1 should be used for a school. The Chalfont St Peter Parish Council ("the Parish Council") want the Chalfont St Peter Church of England School ("the Church of England school") to be relocated to part of the site because the school is overcrowded and it considers that its facilities are inadequate. The Church of England school's existing site is surrounded by residential housing which leaves no room for expansion. The convent school site is much larger and could accommodate both the school and some residential housing.

3

The use of part of the convent school site for the Church of England school is precluded by the two decisions of the Chiltern District Council ("the District Council") which are challenged by the Parish Council in these proceedings. The first decision challenged is that on 21 December 2010 granting the Trustees planning permission for a mixed use development on the site, including 198 dwellings. That decision confirmed the District Council's decision on 5 August 2010 to grant planning permission subject to the completion of a section 106 agreement and the exercise by the Secretary of State of his power to "call in" the application.

4

The second decision challenged is the District Council's adoption on 15 November 2011, following an examination in public before an Inspector, of a Core Strategy containing Policy CS6. Policy CS6 identified the convent school site as one of three strategic housing sites. Mr Simon Emerson, the Inspector who examined the Core Strategy document submitted by the District Council, concluded that the document, including Policy CS6, provided an appropriate basis for the planning of the district, was supported by sufficient evidence, and had a reasonable chance of being delivered. The effect of the two decisions is that the site will primarily be used for residential development. Although, there would also be a care home and a sports pitch on it, and the convent's chapel would be retained, there would be no school.

5

The Parish Council has described the use of the convent school site as "the most significant planning issue facing [the] community for the foreseeable future". It considers that its wish to relocate the Church of England school is a realistic aspiration because that school's present site could be sold for residential development and the funds used for the new project, and because the Diocese of Oxford supports what became known as the "land swap" proposal and has agreed that funds from the sale of the school's existing site can be used. The relevant education authority is not

the Parish Council or the District Council but Buckinghamshire County Council ("the County Council"). The County Council has stated that in principle it supports the relocation of the Church of England school but that there is no statutory requirement for a move and it will not contribute to costs. The District Council's position is that, at the time of the relevant decisions, for reasons summarised later in this judgment, 2 the relocation plan was an impractical aspiration which it was not required to consider as a "reasonable alternative" in the preparation of its Core Strategy
6

The Parish Council's challenge to Policy CS6 of the District Council's Core Strategy insofar as it relates to the strategic housing allocation on the convent school site is brought by a statutory application pursuant to section 113 of the Planning and Compulsory Purchase Act 2004 ("the Act") filed on 12 December 2011. This challenge was dismissed by His Honour Judge Richard Foster on 3 July 2013: see [2013] EWHC 1877 (Admin). The grant of planning permission for the mixed use development on the convent school site was challenged in judicial review proceedings filed on 18 November 2011. The Trustees are an interested party to those proceedings. This challenge was dismissed by the same judge on 17 July 2013: see [2013] EWHC 2073 (Admin). Both judgments are admirably concise. The Parish Council appeals against the orders of the judge with the permission of Sullivan LJ following an oral renewal hearing on 24 March 2014: [2014] EWCA Civ 346.

7

The questions for decision in the appeal against the dismissal of the section 113 challenge to policy CS6 of the Core Strategy are:

(1) Did the judge err in law when determining that the District Council was not under an obligation to consider the "land swap" proposal as a reasonable alternative in the environmental report as required by Article 5. of Directive 2001/42/EC ("the 2001 Directive") and Regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004 SI No. 1633 of 2004 ("the SEA Regulations"); and

(2) Did the judge err in law in determining that the decision of the Inspector who conducted the examination into the Core Strategy document between January and October 2011 contained adequate reasons?

8

The questions for decision in the judicial review appeal are:

(1) Did the judge err in law by failing to conclude that the District Council's planning committee made its decision based on an error of fact as to the extent of the playing fields on the convent school site, and did that error lead it to conclude that the application complied with Policy R2 of the adopted District Local Plan; 3 and

(2) Did the judge err in law when determining that the District Council's interpretation of Policy CSF2 of the adopted Chiltern District local plan 4 was correct in not requiring a like-for-like replacement of a community service or facility on the site (here the school use)?

9

The material legislation and the policies relevant to this appeal are set out or summarised in the Appendix to this judgment ("the Appendix"). Paragraph numbers in judgments are indicated by square brackets and those in other documents by "§". The judgment itself is divided into eight sections. Sections II – VI contain the factual background ([11] – [32], [36] – [37], [42] – [47] and [49] – [59] and [61]), the officer's report and decision of the District Council granting planning permission ([33] – [35], [40] and [48]), the decisions of the Inspector and District Council approving and adopting the Core Strategy ([60] and [61]), and the judge's reasoning ([63] – [68]). Section VII contains my analysis and the reasons for my conclusion that both appeals should be dismissed. I deal with the challenge to the Core Strategy at [69] – [94] and [125] and the judicial review at [95] – [121]. Section VIII ([126]) summarises my conclusions.

10

The written and oral submissions on behalf of the Parish Council, the District Council, and the Trustees of Mr Dove QC, Ms Ellis QC and Mr Lowe QC have been of considerable assistance in a case of some complexity. For the purposes of the appeal the parties commendably attempted to reduce the very large volume of material that had been before the judge. Unfortunately, the documents concerning the Core Strategy appeal were put before the court in a very unsatisfactory way. There were separate bundles for the appellant's documents and the respondent's documents. There was a significant amount of overlap between the two bundles, duplication of documents, even within the same bundle, and some parts of the same document were in one bundle while other parts were in another. As both bundles had attempted to keep the pagination used below, it should have been possible for the experienced planning solicitors and counsel to produce a single bundle. Additionally, the skeleton arguments were prepared before the pagination in the bundle was settled. These factors significantly impeded pre-hearing preparation by the court because of the difficulty in finding the material relied on by the parties, and in at least one respect (see [24], footnote [6] below), affected the way the material was presented at the hearing.

II. THE FACTUAL BACKGROUND TO THE DECISIONS

11

The significant overlap in the facts relevant to the two challenges led to them being heard together. It is therefore convenient to summarise the factual position relevant to both together and in a broadly chronological way. In view of the nature of the submissions and to provide the context for my conclusions, it is necessary to do so in some detail.

...

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