Hawkhurst Parish Council v Tunbridge Wells Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr James Strachan |
| Judgment Date | 11 November 2020 |
| Neutral Citation | [2020] EWHC 3019 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 November 2020 |
| Docket Number | Case No: CO/431/2020 |
[2020] EWHC 3019 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Strachan QC
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Case No: CO/431/2020
The Queen -on the application of-
and
Mr Alistair Mills (instructed by Richard Max Solicitors) for the Claimant
Ms Megan Thomas (instructed by Sharpe Pritchard) for the Defendant
Mr Giles Cannock QC (instructed by Shoosmiths) for the Second Interested Party
Hearing dates: 28–29 July 2020
Approved Judgment
Mr James Strachan QC (Sitting as a Deputy Judge of the High Court):
Introduction
By this claim for judicial review the Claimant, Hawkhurst Parish Council, challenges the lawfulness of a decision of the Defendant, Tunbridge Wells Borough Council, given by notice dated 23 December 2019 to grant planning permission (reference number 19/01271FUL) to the Second Interested Party, McCarthy & Stone Retirement Lifestyles Ltd, at The White House in Hawkhurst (“the Site”) for:
“Demolition of existing dwelling and erection of 43 retirement living apartments with associated communal facilities, access, parking and landscaping…”
In broad terms, the Claimant contends that the Defendant was materially misled by the Officers' Report recommending the grant of planning permission because:
i) it failed to deal with the issue of the highways impact of the proposed scheme cumulatively with other committed development (Ground 1);
ii) it failed to address a particular heritage development plan policy, Policy EN4, concerning demolition and conservation areas (Ground 2); and
iii) it misinterpreted national policy on the protection to be given to the Area of Outstanding Natural Beauty (“AONB”), and the finding that there were exceptional circumstances for development in the AONB was not reasonably open to the Council (Ground 3).
The Claimant was granted permission to bring the claim by Thornton J by an Order dated 11 March 2020. The Claimant was subsequently granted permission to amend its ground of claim by Order of Neil Cameron QC (sitting as a Deputy High Court Judge). The Deputy Judge also granted the Claimant's application to admit the second witness statement and exhibits of David Warman, but with permission for the Defendant to submit further evidence in response if so advised. The Defendant did so in the form of a second witness statement from Ms Vicki Hubert dated 26 June 2020.
The substantive hearing took place by video conferencing with the co-operation of the parties. The Claimant was represented by Mr Mills. The Defendant was represented by Ms Thomas. The Second Interested Party was represented by Mr Cannock QC. I am very grateful to them all for the clarity and helpfulness of their written and oral submissions. The First Interested Party did not appear and was not represented.
In its skeleton argument, the Claimant identified that it was not pursuing that part of Ground 2 of its Amended Statement of Facts and Grounds alleging there had been a misinterpretation of heritage policy in the National Planning Policy Framework (“the NPPF”). Mr Mills confirmed this at the hearing. During the course the hearing itself, Mr Mills also announced that the Claimant was withdrawing that part of Ground 1 alleging that that there had been a misinterpretation of 109 of the NPPF and that the Council had only considered highway safety, rather than the impact on the highway more broadly. He therefore withdrew paragraphs 94–97 of his skeleton argument. Given that those parts of the grounds of challenge have been formally withdrawn, I do not address them further in this judgment.
The Facts
The Site
The Site is located in Hawkhurst, a village located in the High Weald AONB. It is about 0.6 hectares in size. It currently contains a detached dwelling named The White House. The Site fronts on to the A229. This road runs through the village in a north-south direction. Just to the north of the Site, the A229 meets the A268 which runs through the village in an east-west direction. The two roads intersect at a signalised crossroads which the parties have conveniently referred to as the Junction.
The Junction
The Junction is the subject of traffic congestion. This has been, and continues to be, a significant source of concern not just to the Claimant, but also to Kent County Council (“KCC”), the local highway authority for this area.
On 4 September 2017, Ms Hubert — the Principal Transport and Development Planner in the Highways and Transportation Division of KCC — sent an email to councillors and officers of KCC and the Defendant attaching a document entitled “KCC Highways Position Statement: Development in Hawkhurst – Summary”. In the email, she stated that the statement set out that KCC Highways would be objecting to any further development within Hawkhurst village boundary “owing to the impact on the already congested junction being severe”. She considered this to be in line with the advice in paragraph 32 of the NPPF (in the version of the NPPF extant at that time), which uses the word “severe” as a test. Ms Hubert stated she was attempting to prove this through extensive traffic surveys undertaken in the last few months. She expected any applications refused owing to the statement to go to appeal where her interpretation of “severe” would be tested.
The attached Position Statement document stated (amongst other things):
“Hawkhurst village has grown around a junction where two major A roads cross. This junction is recognised by KCC as being at capacity with significant delays experienced, particularly during peak hours. Following KCC's investigation into several possible improvement schemes during the last few years, no solution has been found that can both be delivered and achieve the required additional capacity.”
The conclusion section stated:
“… It is therefore KCC's position that, in line with NPPF paragraph 32, no development will be recommended for approval within the village boundary that generates any additional trips through the junction, unless the developer can demonstrate a scheme that mitigates their specific impact.”
Ms Hubert received an email from Mr Barrington King at KCC asking about other similar situations in the borough. Ms Hubert replied that Hawkhurst was currently in a unique position in that she believed that KCC had explored all possible options to improve the junction to no avail (in contrast to other locations). She also received an email on 7 September 2017 from Mr Baughen, a senior planning officer of the Defendant. He asked a number of questions to which she responded on 15 September 2017. The questions (which I have italicised) and her answers included the following:
“1. Does KCC have a set a criteria for “development that generates any additional trips through the junction?
— eg for residential development, is this as low as a single additional dwelling? If so, is it the case that the cumulative impact will be judged served as outlined in the NPPF?
This has been a testing part of the statement to commit to, but in essence we are saying the cumulative impact of several/many individual units will add to the severity of congestion experienced at the junction. As we have judged that the existing situation is ‘severe’, it should apply that any additional units/trips would compound the effect.
…
4. Have KCC had any discussions with applicants/highway consultants about how impacts can be mitigated? If so, can a summary of these please be relayed to us?
The only realistic proposal that mitigates this problem is the Golf Club owner's proposal to construct a relief road to the north-west of the junction. I have also spoken to PBA …[for another site] about mitigation, stating we will be open to any suggestions that have a realistic positive impact. PBA tentatively suggested public transport improvements but I am dubious about the benefits tinkering with timetables would have. They will be considering the options and coming back to me. I'll keep you updated.”
…
5. How do the objections fit with existing allocations, both the longstanding ones.. and the newer ones in the allocations document?
Owing to windfall sites and sites not in the Core Strategy that have been allowed at appeal, the number of dwellings KCC stated we would not object to within the parish has been exceeded. Even with some allocated sites not yet applied for planning application, the line has to be drawn. With our evidence showing the junction is now suffering from severe congestion at peak times, and the original allocation number of 240 dwellings having been exceeded, we propose to object to any applications from this point forwards – whether they are allocated or not.”
Mr Mills draws attention to this correspondence as setting out an approach which the Claimant supports. He submits it is not “blanket approach”, as it left open the possibility of a developer coming forward with a scheme to mitigate the impact of development. He also seeks to place reliance on Ms Hubert's comments about public transport improvements as effectively discounting the realism of them as a solution. However, Mr Mills acknowledges that the Position Statement Summary, and the approach it advocated, did not become KCC policy. To the contrary, the approach Ms Hubert had outlined was in fact withdrawn as the subsequent correspondence reveals. Moreover, I...
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