Forestry Commission and Another v 1) The Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] EWHC 1848 (Admin) |
| Docket Number | Case No: CO/395/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2015 |
[2015] EWHC 1848 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/395/2015
Martin Kingston QC and Jenny Wigley (instructed by Pinsent Masons) for the Claimants
Daniel Kolinsky QC (instructed by the Government Legal Department) for the First Defendant
The Second, Third and Fourth Defendants did not attend and were not represented
Hearing date: 24 June 2015
The Claimants apply under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, dated 18 December 2014, to refuse to grant planning permission to the Claimants for a proposed development on land at Delamere Forest, Station Road, Northwich, Cheshire. The Second Defendant does not oppose the claim.
Delamere Forest lies within the North Cheshire Green Belt and an Area of Special County Value ("ASCV"). It comprises some 753 hectares of forest and lakes. It is owned and managed by the Forestry Commission, and is used extensively for public recreation. Forest Holidays is a limited company, partly owned by the Forestry Commission. Forest Holidays manages camping and cabin sites on Forestry Commission land, as a joint venture with the Forestry Commission.
On 10 June 2013, the Claimants applied to the Second Defendant for planning permission for development in two separate areas of the forest. At the visitor centre site, at the southern edge of the central main part of the forest, the Claimants applied for permission to re-organise the existing visiting hub facility to provide a replacement visitor centre, and for a change of use of the existing visitor centre to offices, and demolition of the existing offices. At the Kingswood site, at the extreme northwest part of the forest, the Claimants applied for permission to construct a complex of 70 holiday cabins with timber decks, hot tubs and satellite tree houses; a reception area with a shop, café, kitchen, seating area, storage and toilets; a maintenance yard; a refuse area; staff accommodation; car parking and a cycle store.
On 29 November 2013, the First Defendant directed, pursuant to section 77 TCPA 1990, that the application should be referred to him for determination because of a concern that the proposed development might conflict with national policy on development in the Green Belt.
The First Defendant appointed an Inspector (Ms Wendy Fabian) who conducted site visits and an Inquiry, which sat for 4 days in June 2014. In the Inspector's Report ("IR") dated 14 October 2014, she recommended that the application for planning permission be refused.
In a decision letter ("DL"), dated 18 December 2014, the First Defendant accepted the Inspector's recommendations and refused planning permission. In summary, the reasons for refusal were that the proposed cabin development did not accord with the provisions of the development plan. In particular, it was contrary to the Local Plan Policy GS3 (Green Belt); Local Plan Policy RT9 (chalet development) and Local Plan Policy NE11 (designated areas of special county value).
Claimants' grounds of challenge
The Claimants submitted that, in making his decision, the First Defendant misinterpreted and misapplied Local Plan Policy RT9 on chalet development. Further, although he acknowledged that the proposed development was partially compliant with Policy RT9, he wrongly excluded this factor from consideration when assessing the overall planning balance and reaching his conclusions. His approach was therefore contrary to section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The same errors were made by the Inspector, whose recommendations were accepted by the First Defendant.
The Claimants submitted that the First Defendant failed to give reasons for his decision not to accord any weight to the compliance with the criteria in Policy RT9. This ground was added by amendment at the hearing.
In response, the First Defendant submitted that the First Defendant and the Inspector correctly interpreted and applied Policy RT9. They were entitled to find that the proposed development was not in accordance with Policy RT9, which provides that chalet development is inappropriate development in the Green Belt and will only be permissible in cases where there are very special circumstances sufficient to outweigh the harm. Such "very special circumstances" did not exist in this case. The proposed development was also contrary to Local Plan and national Green Belt policies.
This area of Green Belt land lies "within the open countryside" and therefore paragraph 2 of Policy RT9 also applies to it. However, paragraph 1 adds significant additional restrictions on development in the Green Belt. Thus, fulfilment of the criteria in paragraph 2 is not sufficient to comply with RT9 in respect of a development in the Green Belt.
The First Defendant had to decide whether or not the proposed development accorded with the provisions of the development plan when considered as a whole, not by reference to each part of each policy. In conducting this exercise, he clearly had in mind and acknowledged the fact that the proposal met criteria within paragraph 2. As the decision-maker, he was entitled to place such weight on these factors as he saw fit, in the overall planning balance. In considering whether there were "very special circumstances" which outweighed the harm in the Green Belt, it was rational to treat conformity with individual components of the policy expectations as "neutral" rather than "benefits" where they essentially concerned the avoidance/minimisation of harm (as distinct from the conferring of a positive benefit). Once the correct legal approach was adopted, it was clear that the reasons given were adequate.
Legal framework
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004"), read together with section 70(2) TCPA 1990. The National Planning Policy Framework ("NPPF") is a material consideration in planning decision-making (see NPPF paragraphs 11 to 13).
In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447, Lord Clyde explained the effect of this provision, beginning at 1458B:
"Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters……
By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is helpful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.
Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the...
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