Dover District Council v CPRE Kent
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lady Hale,Lord Wilson,Lady Black,Lord Lloyd-Jones |
| Judgment Date | 06 December 2017 |
| Neutral Citation | [2017] UKSC 79 |
| Date | 06 December 2017 |
| Court | Supreme Court |
[2017] UKSC 79
Lady Hale, President
Lord Wilson
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Appellant (Dover District Council)
Neil Cameron QC
Zack Simons
(Instructed by Legal Services, Dover District Council)
Appellant (China Gateway International Limited)
Matthew Reed QC
Matthew Fraser
(Instructed by Pinsent Masons LLP (London))
Respondent
John Howell QC
Ned Westaway
(Instructed by Richard Buxton Environmental and Public Law)
Heard on 16 October 2017
( with whomLady Hale, Lord Wilson, Lady BlackandLord Lloyd-Jonesagree)
When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty?
Those issues are presented by this appeal in a particularly striking form. The context is a proposal for major development to the west of Dover, on two sites referred to as Western Heights and Farthingloe. The latter is within the Kent Downs Area of Outstanding Natural Beauty. Western Heights is a prominent hilltop overlooking Dover, dominated by a series of fortifications dating from the Napoleonic wars, including the so-called "Drop Redoubt". The site is a scheduled monument. Farthingloe is in a long valley between the A20 and the B2001 to the west of Western Heights, and comprises 155 hectares of agricultural and scrubland.
The application for planning permission was submitted by the second appellant ("CGI") to the local planning authority, the Dover District Council ("the Council"), on 13 May 2012. The principal elements were: 521 residential units and a 90 apartment retirement "village" at Farthingloe; 31 residential units and a hotel and conference centre at Western Heights; and conversion of the Drop Redoubt into a visitor centre and museum. A payment of £5m for the improvements to heritage assets, to be funded from the profits of the residential development, was to be secured by a planning agreement. The development was categorised as "EIA development" for the purpose of the relevant regulations (Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) regulation 2(1)), and was accordingly accompanied by an environmental statement.
The proposal attracted strong support and strong opposition. Some saw it as offering a much-needed boost to the local economy. Thus, for example, the South East Local Enterprise Partnership commented:
"The proposals represent a major opportunity for both Dover and the wider tourism and visitor economy of East Kent at a time of major challenges facing the local economy. In the absence of likely public-sector funding to act as a catalyst for change it is essential that the private sector is encouraged to move forward with confidence and business can aid recovery. Approval of the application would be timely in demonstrating that Dover is open for business and investment. Refusal would send out all the wrong messages to investors."
Others (including the present respondents, CPRE Kent) saw it as a serious and unjustified breach of national policy. Thus the AONB Executive said:
"The Farthingloe valley in the Kent Downs Area of Outstanding Natural Beauty is an enormous asset to Dover. This dry chalk valley provides a memorable approach to the town, with glimpses of Dover castle, as well as a green setting for both the town and the Western Heights available for all to enjoy. The proposed development of over 500 houses in a particularly prominent area of the valley would irreparably damage this nationally protected landscape. It would cause significant harm to the special character and the natural beauty of the AONB. No meaningful mitigation would be possible. The scheme is wholly contrary to national and local policy and is a major challenge to the Government's purposes for AONB designation. We have found no other housing development nationally on a similar scale which has been approved in an AONB …"
These views along with many others on both sides were faithfully summarised in the officers' report to the Planning Committee, circulated on 7 June 2013. The report, under the name of the Head of Regeneration and Development, is a remarkable document. It runs to some 135 pages with appendices. It contains a comprehensive exposition of the various elements of the proposed development, the responses to consultation public and private, and the applicable national and local policies, followed by a detailed appraisal of the relevant issues, and concluding with a recommendation for the grant of permission but in amended form.
The principal change recommended by the officers was the exclusion from the development at Farthingloe of a "safeguarded area" of some 2ha in the south-west (in the more prominent sector known as FL-B), where "officers consider the landscape harm … most acute"; and the consequent reduction of the number of houses at Farthingloe from 521 to 365. The Council's economic advisers, Smiths Gore, had advised that the reduction would not jeopardise the viability of the scheme or the intended financial contributions (officers' report paras 2.216, 2.443, 2.445). One aspect of Smiths Gore's advice was to suggest a reduction in the Code for Sustainable Homes (CSH) rating from Code 4 to Code 3, which would not only deliver a viable development but would also achieve "a more marketable and higher quality housing scheme … this being important to help diversify and improve the Dover housing offer" (paras 2.217, 2.443). Among other recommended conditions, it was proposed that the provision of the hotel should be secured by requiring it to be commenced before one of the development phases (para 2.131(iii)).
In a section of the report headed "NPPF (para 116) review", reference was made to that paragraph of the National Planning Policy Framework (NPPF), which indicates that major development in an AONB should be permitted "only in exceptional circumstances and where a public interest can be demonstrated". The officers regarded the level of harm to the AONB as "significant", particularly to the south-west of sector FL-B where "built development on the elevated and exposed terrain would seriously compromise the landscape character". They concluded:
"2.447 Nevertheless it is your officers' opinion that offsetting the landscape harm by the modifications outlined in this report would shift the planning balance in favour of the economic and other national benefits of the application. The local economic issues and specific circumstances of this case … are considered to provide a finely balanced exceptional justification for this major AONB development, the benefits of which would be in the public interest. Essential to this conclusion would be seeking all the recommended conditions (changes) and ensuring (by condition / section 106 agreement) the deliverability of all the relevant application 'benefits'. The rationale for the application is as a composite package, and any permission should therefore be framed to ensure the emergence of the proposals in a structured and comprehensive fashion."
It was noted that the applicant had not yet been given an opportunity to comment on these proposed changes. If they were supported in principle by the Committee, it was suggested that they might delegate to officers to discuss with the applicant "any minor variation of the proposed residential quantum", and the precise boundaries of the safeguarded area, although it was "not envisaged that this should lead to any notable change in the recommended approach" (para 2.448). On balance their conclusion in this case was that the application would, as "a single comprehensive scheme", support rather than work against the overall objectives of sustainable development as defined by the NPPF (para 2.454).
In a section headed "Conclusion" it was stated:
"… the officer position is that the conditions / changes as set out in this report (informed by independent legal and financial viability advice) are well founded and that all are necessary to deliver the right composite package, including the economic benefits, so that an on balance recommendation of approval can reasonably be made." (para 2.457)
The report ended with a recommendation for the grant of conditional planning permission (part outline, part full) for the various elements of the proposal, but with a limit of 365 residential units at Farthingloe, and subject to the completion of a planning agreement (under section 106 of the Town and Country Planning Act 1990) to secure the proposed benefits including the hotel and conference centre.
The report was shown to the applicants. Their consultants, BNP Paribas, wrote on 11 September, expressing "fundamental" disagreement with Smiths Gore's appraisal of viability. They commented on the proposed reduction to 365 houses:
"We have re-run our appraisals to test the impact of the removal of 156 units, as suggested by Smiths Gore. The result is to turn a positive land value of £5.85m to a negative land value of — £3.03m. On the basis of this result, the scheme would not secure funding and could not proceed.
For the avoidance of doubt, we do not agree with the planning officer's assessment that the benefits provided by the Application scheme could also be provided by the sensitivity analysis mooted by Smiths Gore. Indeed, our view is that such a scheme would not be...
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