R(Cherkley Campaign Ltd) v Mole Valley District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Underhill,Lord Justice Floyd |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWCA Civ 567 |
| Docket Number | Case Nos: C1/2013/2619, 2622, 3551 and 3781 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2014 |
and
[2014] EWCA Civ 567
Lord Justice Richards
Lord Justice Underhill
and
Lord Justice Floyd
Case Nos: C1/2013/2619, 2622, 3551 and 3781
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Haddon-Cave
Royal Courts of Justice
Strand, London, WC2A 2LL
James Findlay QC (instructed by Sharpe Pritchard) for the Appellant
Douglas Edwards QC and Sarah Sackman (instructed by Richard Buxton Solicitors) for the Respondent
Christopher Katkowski QC and Robert Walton (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing dates: 11–12 March 2014
This appeal concerns the grant of planning permission for the development of Cherkley Court and land on the Cherkley Estate near Leatherhead, Surrey, into a hotel and spa complex and an exclusive 18 hole golf course. The whole estate is within the Surrey Hills Area of Great Landscape Value ("the AGLV") and part of the proposed golf course is within the Surrey Hills Area of Outstanding Natural Beauty ("the AONB"). The planning permission was granted on 21 September 2012 by the local planning authority, Mole Valley District Council ("the Council"), to Longshot Cherkley Court Limited ("Longshot"). Cherkley Campaign Limited ("Cherkley Campaign") brought a claim for judicial review to challenge the grant of planning permission. The claim succeeded before Haddon-Cave J who by order dated 22 August 2013 quashed the planning permission. The Council and Longshot both bring appeals against that order, with permission granted by Sullivan LJ. They also appeal against Haddon-Cave J's costs order dated 15 November 2013, but the costs appeals are contingent on the outcome of the main appeals.
The facts are set out at paras 5 to 27 of the judgment of Haddon-Cave J. Rather than repeat them here, I will refer to salient features as necessary when considering the issues on the appeal. It is, however, relevant to note at this stage that the decision to grant permission was made by the Council's Development Control Committee ("the Committee") by a bare majority of 10 to 9 after a prolonged decision-making process and that it was contrary to the recommendation in the officers' reports. The grant of permission was accompanied by a lengthy summary of reasons, drafted by the officers, which is quoted in full at para 27 of the judgment below.
The issues in the appeal can be considered under the headings of (1) development plan policy, (2) landscape impact, (3) Green Belt policy and (4) reasons.
I should say at once that Haddon-Cave J examined the case with great thoroughness and style. He was not at all impressed by the arguments in favour of a golf course development in this area of outstanding natural beauty and/or great landscape value and he expressed himself in strong terms in concluding that the decision of the majority of the Committee suffered from error of law, irrationality and inadequacy of reasons. After initial reading of his judgment I approached the appeals with a disinclination to interfere with it. In the end, however, I have been persuaded by the submissions on behalf of the appellants that he was wrong on each of the issues on which he found against them. In those circumstances I have concluded that his orders cannot stand. My reasons for that conclusion are set out below.
Development plan policy
The relevant policy
Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") required the Council to determine the planning application in accordance with the development plan unless material considerations indicated otherwise. By section 54(1), the development plan included "the provisions of the local plan … for the time being in operation in the area".
The Mole Valley Local Plan ("the Local Plan"), adopted in October 2000 under the predecessor legislation, contained a section on golf courses. The section comprised "Policy REC12 – Development of Golf Courses" and supporting text (paragraphs 12.70 to 12.81), as follows:
" GOLF COURSES
12.70 There are seven established golf courses in the District concentrated principally around Dorking and Leatherhead. In the Newdigate area a new course has been opened in recent years and another permitted. More generally this part of Surrey is very well served with golf courses. According to the recognised standards of provision there is no overriding need to accommodate further golf courses in the District.
12.71 In considering proposals for new courses, the protection of the District's Green Belt and countryside will be of paramount importance. In this regard it will be important to ensure that a proposal is compatible with retaining and where possible enhancing the openness of the Green Belt and rural character of the countryside. Applicants proposing new courses will be required to demonstrate that there is a need for further facilities.
12.72 New courses are likely to have an impact on the District's landscape because of their extensive size, formal appearance, considerable earth works and new buildings. The Council will seek to ensure that proposals for golf courses do not reduce the distinctiveness and diversity of the District's landscape. The Council is particularly concerned about the effect on the special landscape qualities of the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value and future golf course proposals will be directed away from these areas of high landscape quality.
POLICY REC12 – DEVELOPMENT OF GOLF COURSES
Proposals for new golf courses and extensions to existing courses will be considered against the following criteria:
1. the impact of the course on the landscape, archaeological remains and historic gardens, sites which are important for nature conservation and identified in Policies ENV9, ENV10, ENV11, ENV12 and ENV13, and the extent to which the proposal makes a positive contribution to these interests;
2. the extent of any built development and facilities and their impact on the character and appearance of the countryside;
3. courses will not be permitted on Grade 1, Grade 2 or Grade 3a agricultural land;
4. the course should have safe and convenient vehicular access to an appropriate classified road. Proposals generating levels of traffic that would prejudice highway safety or cause significant harm to the environmental character of country roads will not be permitted;
5. the extent to which public rights of way are affected and whether any provision is proposed for new permissive rights of way;
6. the provision of adequate car parking which should be discreetly located or screened so as not to have an adverse impact on the character and appearance on the countryside.
In considering proposals for new golf courses, the Council will require evidence that the proposed development is a sustainable project without the need for significant additional development in the future, such as hotels or conference facilities.
Proposals for new golf courses should be designed to respect the local landscape character. New golf courses in the Surrey Hills Area of Outstanding Natural Beauty and the Area of Great Landscape Value will only be permitted if they are consistent with the primary aim of conserving and enhancing the existing landscape.
12.73 In determining proposals for golf courses and ancillary development, the Council will have regard to the Surrey County Council's guidelines for the development of new golf facilities in Surrey. Account will also be taken of the existing and proposed provision of courses in the area …."
Part of Cherkley Campaign's case before the judge was that the Committee majority (i) failed to apply correctly the requirement in paragraph 12.71 for "need" to be demonstrated and (ii) failed to consider whether the golf course could be "directed away" from the AONB and AGLV in accordance with paragraph 12.72. The judge accepted both arguments: he dealt with need at paras 51–123 of his judgment and with directing away at paras 124–130. In considering the appellants' challenge to those findings I will follow the pattern of the submissions by concentrating primarily on need and coming back at a later stage to deal briefly with directing away.
Whether there was a requirement to demonstrate need
The first issue in relation to need is the status and effect of the statement in paragraph 12.71 of the Local Plan that "Applicants proposing new courses will be required to demonstrate that there is a need for further facilities". That issue turns on (i) the relationship between Policy REC12 and the supporting text and (ii) the effect of the 2004 Act and a "saving direction" made under it in respect of Policy REC12.
It is helpful to consider first the relevant statutory provisions and guidance at the time when the Local Plan was adopted. Section 36 of the Town and Country Planning Act 1990, in the version in force at the time, provided:
"36 … (2) A local plan shall contain a written statement formulating the authority's detailed policies for the development and use of land in their area.
…
(6) A local plan shall also contain –
(a) a map illustrating each of the detailed policies; and
(b) such diagrams, illustrations or other descriptive or explanatory matter in respect of the policies as may be prescribed,
and may contain such descriptive or explanatory matter as the authority think...
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