R Chalfont St Peter Parish Council (Claimant/Prospective Appellant) v Chiltern District Council (Defendant/Prospective Respondent) Holy Cross Sisters Trustees Incorporated (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] EWCA Civ 346 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/2479 & C1/2013/2567 |
| Date | 12 March 2014 |
[2014] EWCA Civ 346
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HHJ RICHARD FOSTER — SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sullivan
Case No: C1/2013/2479 & C1/2013/2567
Mr Ian Dove QC (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
There are two renewed applications for permission to appeal before the court this morning. In case C1/2013/2479, the claimant seeks permission to appeal against the order of His Honour Judge Richard Foster, sitting as a deputy judge of the High Court, dismissing its challenge by way of judicial review to the District Council's decision on 21 December 2010 to grant planning permission for a mixed use development, including 198 dwellings, on the site of the former Holy Cross Convent School in Chalfont St Peter. In case C1/2013/2567, the claimant seeks permission to appeal against the order of the same judge to dismiss its statutory challenge under section 113 of the Planning and Compulsory Purchase Act 2004 against the District Council's decision on 15 November 2011 to adopt Policy CS6 of the Council's Core Strategy.
It is deeply unsatisfactory for all parties that these two challenges have taken so long to reach this stage of the proceedings. The two challenges are interlinked. During the examination of the Core Strategy, the claimant argued that consideration should have been given by the District Council to what was referred to in the judgment below as the claimant's "land swap" proposal; that is to say the development of the site of the existing primary school, which is a Church of England school owned by the Oxford Diocese, for housing, with the primary school moving to the former Holy Cross Convent School site.
The land swap proposal was not made the subject of a sustainability appraisal by the District Council as part of its preparation of the Core Strategy because the District Council considered that the land swap was not a "reasonable alternative". It was not a reasonable alternative because it was not deliverable. It was not deliverable because it was not viable. One of the reasons why it was not viable was the fact that planning permission had been granted for housing on the Holy Cross site. In paragraph 35 of his judgment in respect of the Core Strategy, the judge said that the District Council was entitled to have regard to the fact that planning permission had been granted and the consequent effect upon the market value of the site and the express desire of the owner of the site to sell it for housing development.
The judge dealt with the judicial review challenge to the lawfulness of the planning permission in his judgment ( [2013] EWHC 2073 (Admin)). The permission had been challenged on two grounds: firstly, that the decision had been based upon an error of fact as to the extent of the playing field that formed part of the Holy Cross site; and secondly, that the District Council had misapplied its policy in respect of the retention of community uses (that is to say Policy CSF2).
The judge held in paragraph 21 of his judicial review judgment that there was clearly conflicting evidence as regards the extent of the playing field on the site. He said:
"This was all fairly placed before the committee. The officer set out why he believed the application complied with policy, including policy R2. There was also put before the committee the competing arguments. Nothing in the correspondence following the meeting changed that position so as to render any fact uncontentious. The Defendant made its decision taking into account all the relevant evidence and arguments. The committee was not misled as regards the availability of evidence…"
The relevant policy was Policy R2 in the Adopted Local Plan. The policy is set out in paragraph 9 of the judgment below, but it should be noted that for the purposes of the policy, outdoor sports facilities included not only existing school playing fields but also land last used as school playing fields. The word "last" was inadvertently omitted by the judge in his citation of Policy R2 in paragraph 9 of his...
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Chalfont St Peter Parish Council v Chiltern District Council Holy Cross Sisters Trustees Inc. (Interested Party in C1/2013/2479)
...Council appeals against the orders of the judge with the permission of Sullivan LJ following an oral renewal hearing on 24 March 2014: [2014] EWCA Civ 346. 7 The questions for decision in the appeal against the dismissal of the section 113 challenge to policy CS6 of the Core Strategy are: ......