Mrs Karen Louise Oakley v South Cambridgeshire District Council Mr Len Satchell (Interested Party)
Jurisdiction | England & Wales |
Judge | Lord Justice Elias,Lord Justice Patten,Lord Justice Sales |
Judgment Date | 15 February 2017 |
Neutral Citation | [2017] EWCA Civ 71 |
Docket Number | Case No: C1/2016/1456 |
Court | Court of Appeal (Civil Division) |
Date | 15 February 2017 |
and
[2017] EWCA Civ 71
Lord Justice Elias
Lord Justice Patten
and
Lord Justice Sales
Case No: C1/2016/1456
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (PLANNING COURT)
THE HONOURABLE MR JUSTICE JAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Zack Simons (instructed by Howes Percival LLP) for the Appellant
Jack Parker (instructed by NP LAW) for the Respondent
Hearing Date: 26 January 2017
Approved Judgment
Introduction
This appeal raises the issue whether, in the particular circumstances of this case, the planning committee of the South Cambridgeshire District Council ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people. The proposed construction is in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt.
The application for planning permission was made by the Interested Party, the President of the Club, on 4 November 2013. It was not only for the erection of the ground, together with associated training and parking facilities, but also for the creation of a partially floodlit recreational ground which would be gifted to the Sawston Parish Council for community use.
When considering planning applications, the development plan has a particularly important status. The planning authority must not only have regard to the provisions of the development plan, in so far as it is material (section 70(2) of the Town and Country Planning Act 1990), but also any determination must be in accordance with the development plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004).
There is national guidance about the way in which planning decisions should be made. The relevant guidance in force at the material time was the National Planning Policy Framework (NPPF) of March 2012. Paragraphs 87 to 89 deal expressly with the circumstances in which permission may be granted to allow development in the Green Belt. So far as is relevant to this application, they are as follows:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are…:
• provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;"
I shall call this exception the "appropriate facilities" exception.
The concept of inappropriate development in the guidance is reflected in the Council's local development plan, the Local Development Framework 2007. It is common ground that, in the context of this case, if there is inappropriate development within the meaning of the guidance, there will also necessarily be a breach of the development plan, although the converse is not necessarily true.
The Planning Officer's report
The Council's Senior Planning Officer produced an impressive and very detailed report on the 4 June 2014 in which she recommended that the application should be rejected and permission refused. She recognised that certain benefits, including economic and community benefits, would accrue from the development but did not consider that they were of sufficient weight to constitute "very special circumstances" within the meaning of para. 88 of the NPPF. The report set out in detail the responses to consultations and summarised some 184 letters in support of the development and 42 against it. The factors in favour included the fact that not only would the development assist the Club but it would also provide new sporting, recreational and social activities for the community. The objections were mainly that the development would adversely affect the Green Belt and have a harmful visual impact on the surrounding landscape. There were also concerns about traffic, noise, and certain ecological matters.
The officer specifically considered whether the development fell within the "appropriate facilities" exception in para. 89 of the NPPF, thereby rendering otherwise inappropriate development appropriate. She considered that it did not satisfy the relevant conditions to fall within that exception, both because it failed to preserve the openness of the Green Belt, and because it undermined two of the five purposes of the Green Belt identified in para. 80 of the NPPF, namely checking the unrestricted sprawl of built up areas and safeguarding the countryside from encroachment. Accordingly, in the officer's view this was inappropriate development which could only be justified if there were very special circumstances. The inspector described her approach to determining that issue as follows:
"Paragraph 88 of the NPPF goes on to state that, when considering any application, planning authorities should ensure that substantial weight is given to any harm to the Green Belt and that very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness and any other harm is clearly outweighed by other considerations. It is therefore next necessary to consider whether the development results in any further harm in addition to that caused by inappropriateness." (Emphasis in original.)
She then considered other potential harm including adverse visual impact; the effect on local residents of increased traffic, noise and lighting; and ecological harm. It was recognised that some of the potential problems could be satisfactorily mitigated by appropriate conditions. There was also consideration of what the officer accepted would be certain community and economic benefits of the proposed scheme. The inspector reached the clear conclusion, however, that these were not sufficient to amount to very special circumstances justifying the development. She considered that:
"… these benefits, whether taken individually or collectively, would not clearly outweigh the harm to the Green Belt caused by reason of inappropriateness as well as the additional harm identified in this report." (para.134).
In her summary of the reasons for refusing permission, she identified the various aspects of the development plan which would be infringed, in her view without justification, by this development (para.136):
"1. The site lies outside the defined village framework for Sawston, and within the countryside and Cambridge Green Belt. The proposed development, by virtue of the nature and range of proposed uses, together with the scale of the facility and its consequent failure to preserve the openness of the Green Belt, would constitute inappropriate development in the Green Belt, as defined within the National Planning Policy Framework 2012 ('the NPPF 20–12'), and would therefore be contrary to Policy GB/1 of the South Cambridgeshire Local Development Framework 2007 ('the LDF').
2. Notwithstanding the harm by reason of inappropriateness, the development would result in additional harm to the rural character of the area and to the openness of the Green Belt. Consequently, the proposal would be contrary to Policy DP/3 (m) of the adopted Local Development Framework 2007, which states that development will not be permitted if it would have an unacceptable adverse impact on the countryside and landscape character.
3. Notwithstanding the harm by reason of inappropriateness, the site is in a location that would result in unsustainable forms of travel for the proposed use. Consequently, the proposal would be contrary to Policies DP/1 and TR/1 of the adopted Local Development Framework 2007, which state that development will only be permitted if it would be consistent with the principles of sustainable development by, in part, minimising the need to travel and reducing car dependency.
4. Insufficient very special circumstances, including the lack of a sufficiently robust and detailed consideration of alternative sites, have been put forward to demonstrate why the harm, by reason of inappropriateness in the Green Belt and other harm identified above, is clearly outweighed by these considerations. The application therefore fails to satisfy the requirements of paragraph 88 of the NPPF 2012."
The decision of the planning committee
The planning committee met to consider the application on the same day as the report was finalised, namely 4 June. The committee did not follow the recommendation of the officer. There are manuscript notes of the meeting which identify certain issues which were raised but it is not suggested that they show the basis on which the committee made its decision. The committee did not grant planning permission at that meeting; rather, it approved the development in principle. It delegated to officers the power to grant permission subject to certain matters being resolved and, where necessary, conditions being imposed. The outstanding issues included reconsideration of ecology and access issues, further consideration of the environmental impact, and the possible completion of a section 106 agreement. It is also...
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