Nottinghamshire County Council v Secretary of State for Environment, Transport & Regions and Another
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 2001 |
| Neutral Citation | [2001] EWHC 293 (Admin) |
| Docket Number | CO/4490/99 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 March 2001 |
[2001] EWHC 293 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Christopher Lockhart Mummery QC
CO/4490/99
J. Cahill (instructed by Edge & Ellison Solicitors) appeared on behalf of the Claimant
D. Forsbick (instructed by The Treasury Solicitors) appeared on behalf of the First defendant
The second defendant did not attend, and were not represented.
This is an application under s. 288 of the Town and Country Planning Act 1990 to quash a decision of the First Defendant, the Secretary of State for the Environment, Transport and the Regions, given by his Inspector's decision letter dated 27 th September 1999. The decision letter constitutes a redetermination of a planning appeal, where the initial decision was previously quashed by the Court on grounds irrelevant to the present proceedings.
Background
The appeal site constitutes open land on the edge of a housing estate on the southern side of Beacon Hill Road, on the eastern fringe of Newark. The site itself lies at the end of a cul-de-sac, Collis Close.
In the adopted local plan, the site is identified for use as a primary school, and safeguarded for that purpose. The local plan was adopted in March 1999, and covers the period to 2006. Policy EHC1 in the local plan provides, so far as material, as follows:-
Planning permission will not be granted for development which would inhibit the construction of primary schools on the following sites…Beacon Heights…unless:-
(i) it can be demonstrated to the satisfaction of the District Council that the facility is no longer required; or
(ii) sufficient alternative provision has been made elsewhere".
Paragraph 13.2 of the supporting text provides:-
"An essential requirement of any well planned area is the provision of a full range of education, health and community facilities, conveniently located to serve the needs of the resident population. There is a wide range and distribution of services within the district. The local plan provides an enabling role by ensuring that land and/or buildings are available to accommodate new or replacement facilities required during the plan period".
The structure plan comprises the Nottinghamshire Structure Plan Review approved in 1996, with a period to 2011. Policy 4/1 provides for housing land requirements to 2011. Policy 8/1 advises that provision should be made for education facilities as close as possible to the centre of the community they serve and with good access to all forms of transport.
Planning permission had been granted in relation to the site for a school and playing fields in November 1972. I assume that this permission had lapsed. For some considerable time, and at the time of the planning inquiry, the site was used by virtue of a licence between the County Council and the District Council, as temporary playing fields, and for a range of recreational activities by the public. It is important to appreciate, therefore, that the existing (and probably lawful) use of the land is for recreational open space. The landowner, Nottinghamshire County Council, is also the structure plan authority, and the local education authority. Having come to the view that the site was surplus to requirements, it sought to achieve a planning permission for residential development, in order to realise the value of the site.
In paragraph 5 of his decision letter, the Inspector found that there were three main issues in the case. The first was whether the appeal site is likely to be needed for educational purposes during the life of the adopted local plan to 2006 or at a later date. In relation to that issue, the District Council had accepted that there were sufficient spaces available in existing primary schools within a 2 mile radius of the site to meet the needs for housing plan for the period to 2006. In these circumstances the Inspector concluded, in paragraph 7, that the proposed development met the criteria set out in local plan policy EHC1. He continued:-
"The main difference between the main parties focused on the extent to which account should be taken of the needs in the period of the structure plan from 2006–2011. This is a material consideration that I will return to later in this letter".
The Inspector's second main issue was the suitability of the appeal site for educational use, having regard to its location and accessibility. The District Council contended that it was suitable in these terms. The County Council contended to the contrary. In paragraphs 8–12 of the letter, the Inspector addresses those issues, and reaches a conclusion favourable to the District Council in the following terms:-
"Having regard to all these factors, I conclude that the appeal site is suitable for its allocated use as a primary school".
The third main issue was whether development of the site for housing would result in a failure to meet recreational needs in the area or an unacceptable loss of a valuable amenity area, having regard to the long term implications. The Inspector addressed those issues in paragraphs 13–22 of his letter, reaching conclusions favourable to the County Council. In paragraph 23 he stated:-
"In summary on the main issues, whilst I find the site is suitable for use as a school, I find the proposal to build houses on the site is substantially in accordance with the policies of the development plan. Having regard to the requirements of section 54A of the 1990 Act, I now turn to consider the matter of the need for the school in the period from 2006–2011 as I have referred to in paragraph 7 above".
Under the heading "Need for the primary school in the period 2006 —2011", the Inspector addressed that determining issue, which was the issue giving rise to the present proceedings. It is necessary to set out at greater length some of the conclusions of the Inspector:-
"24. The appellant accepted the District Council's forward projections that a further 2000 houses will be needed to meet the Structure Plan requirement for housing to 2011 set out in Policy 4/1. However, it was argued that this should be a matter for the next review of the Local Plan. In the appellant's view, it would be premature to identify a specific site either on the northern side of Beacon Hill Road, if there is a proven local need, or elsewhere in the Newark/Balderston conurbation until the location of new housing for the period from 2006–2011 has been identified.
25. The Structure Plan relies upon the Local Plan to allocate sufficient land to meet the local housing requirement over a given period. Nevertheless, I agree with the District Council's view that it would be equally premature and not in the interest of good planning to eliminate the option of providing a school on this site if it is considered suitable for that purpose and, in the longer term, there is a likelihood that it could be shown to be in the most suitable and appropriate location.
26. The District Council maintain that, although the precise location of housing for the period 2006–2011 will not be determined until the next review of the plan, it is reasonable to assume that to meet government policy on sustainability and the emerging advice in the draft revision to PPG3, between 75–100% of it should be built within or adjacent to the Newark urban area. The appellant did not challenge that approach and I consider it to be a reasonable assumption. On that basis there would be a deficit of some 97–207 primary school places in the area over this period.
27. The appellant argues that it may be more appropriate at the time to extend existing premises rather than to seek to build a new school. The optimum size for a primary school is 210 pupils. DfEE regulations require all schools within a 2 mile radius to be considered when judging the sufficiency of places. However, bearing in mind the deficit figures are over and above the maximum existing capacity of primary schools and even if the household projections continue to fall, I consider there is a strong likelihood of a need for a new primary school to meet the housing needs of the area to 2011.
32. Structure Plan Policy 8/1 advises that provision should be made for education facilities as close as possible to the centre of the community they serve and with good access to all forms of transport. If a new primary school is not built in the Beacon Hill area by 2011, it could leave a total of some 1500 houses with the nearest primary schools of some 300 pupils being in Coddington Village about a mile away beyond the A1(T) road to the east or in Barnby Road beyond the main railway line to the west.
33. Having regard to all these factors, and on the balance of probability, I consider a new primary school is likely to be needed in or close to the urban area of Newark. I find the appeal site suitable for that purpose and the possible future location of suitable sites for a new primary school is so constrained that it would be wrong not to continue to safeguard the appeal site for that purpose. Having regard to the provisions of Section 54A, I find this a material consideration of such importance as to outweigh the substantial accord of the proposal with the Development Plan."
Accordingly, he dismissed the appeal.
It is additionally necessary to make limited references to some of the evidential material which was before the inquiry. The County Council called Mr Foale, an education officer with the Council. He dealt at some length with the relevant...
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