R BATCHELOR ENTERPRISES Ltd v NORTH DORSET DISTRICT COUNCIL
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 28 November 2003 |
| Neutral Citation | [2003] EWHC 3006 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2791/2003 |
| Date | 28 November 2003 |
[2003] EWHC 3006 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Sullivan
CO/2791/2003
MR JAMES FINDLAY (instructed by Battens Solicitors) appeared on behalf of the CLAIMANT
MR PETER HARRISON (instructed by Legal Services, North Dorset District Council) appeared on behalf of the DEFENDANT
Introduction
This is an application for judicial review of a decision of the defendant's Development Control Committee on 29 April 2003, communicated to the claimant on 6 May, not to agree to a request under section 106A(1)(a) of the Town and Country Planning Act 1990 ("the Act") to modify an agreement made under section 106 of the Act dated 30 July 1999 ("the agreement") relating to land known as Oakcrest Service Station, Bournemouth Road, Charlton Marshall, Dorset ("the site").
The factual background
The claimant owns the site and applied for planning permission to redevelop the former service station with five houses in January 1999. Planning permission was granted on 3 August 1999, after the claimant had entered into the agreement. The site is situated at the junction between the A350 Bournemouth Road, a busy main road, and Greenfield Road. As Greenfield Road approaches Bournemouth Road it splits into two, which for convenience I will refer to as access A and access B. A grassed "island" of land was enclosed between accesses A and B and the Bournemouth Road. It seems that when the service station was in use as such, access B went across part of the forecourt. At the time that planning permission was granted in August 1999 it was not appreciated by either the claimant or the defendant that the access to the A350 across the forecourt was, at least in part, a public highway. The residential development envisaged closing off the access across the forecourt and constructing houses on that part of the site, leaving access A as the sole means of access from Greenfield Road to the A350.
The agreement provided that:
"The owner shall at all times hereafter maintain that part of the property shown coloured green on the plan annexed as a grassed open area in a clean and tidy condition free from any buildings or other structures of any kind dedicated in perpetuity as a grassed area of open space land for the benefit and enjoyment of the public."
The area shown coloured green comprised part of the island of land enclosed between accesses A and B and the A350. After construction of the houses had commenced, it was discovered that access B across the former forecourt was a public highway. The partially constructed houses obstructed the highway. Worked ceased and the claimant sought to resolve the problem by making a number of applications. An attempt was made, unsuccessfully, to obtain a stopping up order for access B, leaving access A as the sole means of access to the A350. Application was also made for planning permission for a four house scheme which would leave accesses A and B in situ.
The defendant has resolved to grant planning permission for the four house scheme subject to the claimant entering into a further section 106 agreement, in effect revoking the five house scheme. Application was also made for planning permission for a revised five house scheme which, coupled with a stopping up order for accesses A and B, made provision for a new access to the A350 somewhat to the north of the former alignment of access B. Construction of this new access would encroach onto the land which was required to be maintained as a grassed area under the terms of the agreement.
The defendant refused planning permission and objected to the draft stopping up order. The claimant appealed to the Secretary of State and an inspector held a public inquiry on 28 and 29 May 2002. At the inquiry the defendant objected to the loss of part of the grassed area saying:
"The area now measures 17m x 50m maximum, is in a very prominent position in the street scene, and is clearly visible from the A350 and from Greenfield Road. It is enjoyed by residents for dog exercising, children's play and walking. The new access would occupy about one fifth of the remaining green area. That reduction in its size, the introduction of the new road and its footways, and the prominence of the new bollards associated with the stopping up of access A, would result in the character and appearance of the area being materially harmed …
"Also, the availability of an alternative permission may be a material consideration. The new junction is not needed for the redevelopment of the Oakcrest Service Station site. [an application] has been approved subject to formalities for a redevelopment of four dwellings which (i) would be high density; (ii) could be achieved without a new junction; (iii) would not require the stopping up of roads; and (iv) would retrieve much of the grassed area from beneath the partly completed development."
The inspector's conclusions included the following:
"60. The grassed area is too close to a busy main road to be of utility for children's play and too small for dog walking. Also, it seems to me that the Promoters are entitled to have their scheme considered on its merits rather than —as is suggested by the District Council —significant weight being placed upon the fact that the local planning authority has resolved to approve a development that would make the closure of accesses A or B unnecessary."
The inspector identified two main issues in paragraph 63 of his report:
"I consider therefore the main issues to be whether the proposal would (1) harm the character and appearance of the locality; and (2) prejudice highway safety."
His conclusions in respect of the first of those issues were as follows:
"69. The swathe of grassland that would remain after the introduction of the new access and the widening of the footway would be about 50 per cent of that which existed before construction of the five dwellings commenced and about 80 per cent of that which is the subject of the section 106 agreement. Its frontage would however, albeit only slightly, still extend further to the south east than the garden to the most easterly of the four bungalows, and its north western limit would be unchanged. As a consequence the transitional visual role served by the grassland would not be materially affected by the appeal works, indeed its value to the local scene could be enhanced if, as is suggested by the Promoters, some tree planting took place behind the visibility splay.
"70. I conclude therefore on the first issue that the proposal would not materially harm the character and appearance of the surrounding area. It would thus accord with adopted and emerging policies that seek to protect the environment."
The inspector also considered the implications of the agreement. He said this:
"79. The Council submits that any planning permission granted for the new access would be incapable of implementation without contravening the terms of the section 106 agreement, ie the new access would occupy the eastern end of the green area that the Agreement protects. However whilst the council is clearly correct, this need not affect the granting of permission. I say this for two reasons:
"80. First, the promoters can agree at any time with the District Council for the agreement to be modified. Should the Secretary of State decide to grant permission, in considering whether or not to treat with the Promoters I would expect the Council to take into account the Secretary of State's reasoning and my conclusions in this report —particularly those relating to the significance of the open space in terms of its impact on its character in the context of its setting. Secondly, after 30 July 2004, and by virtue of section S106A(4)(b) of the 1990 Act, the Promoters can apply to the District Council for the agreement to be modified. This would only be two years in, to a planning permission with the normal implementation period of five years."
In his decision letter dated 17 September 2002, the Secretary of State agreed with those conclusions. He said that the main issues were: whether the proposal would harm the character and appearance of the locality; and whether the proposal would prejudice highway safety. Dealing with the first of those two issues, the Secretary of State said this in paragraphs 7 and 8 of the decision letter:
"7. The Secretary of State notes that the North Dorset District Council granted planning permission for five dwellings on land to the south east of the appeal site. That planning permission was subject to a section 106 agreement to maintain the grassed area fronting Greenfield Road in a clean and tidy condition free of any buildings or other structures of any kind dedicated in perpetuity as a grassed area of open space land for the benefit and enjoyment of the public. Part of the open space covered by the section 106 legal agreement forms part of the appeal site. The Secretary of State considers that the existing section 106 agreement is a legal matter between the Council and the developers and does not prevent the granting of planning permission for this development.
"8. The Secretary of State notes that the grassed area is small, approximately 17m x 50m and is very near the busy main A350 Chippenham to Poole Road, which is a primary transport route. He accepts that the area of grass does serve as a visual link or green buffer between the open countryside and the residential development. He notes that about 50 per cent...
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