R Cpre Kent v Dover District Council China Gateway International Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Simon |
| Judgment Date | 14 September 2016 |
| Neutral Citation | [2016] EWCA Civ 936 |
| Docket Number | Case No: C1/2016/0076 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 September 2016 |
[2016] EWCA Civ 936
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queens Bench Division
Administrative Court — CO/2290/2015
Mr Justice Mitting
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
and
Lord Justice Simon
Case No: C1/2016/0076
and
Mr Ned Westaway (instructed by Richard Buxton Environmental & Public Law) for the Appellant
Mr Neil Cameron QC and Mr Zack Simons (instructed by Dover District Council Legal Services) for the Respondent
Mr Matthew Reed (instructed by Pinsent Masons LLP) for the Interested Party
Hearing date: 1 September 2016
Approved Judgment
INTRODUCTION
This is an appeal against the judgment of Mitting J delivered in the Administrative Court on 16 December 2015, by which he gave permission for the appellant to seek judicial review of a planning permission granted by the Dover District Council (the first respondent) on 1 April 2015, but dismissed the substantive claim. The appellant, CPRE Kent, sought permission to appeal to this court on two grounds. On 6 May 2016 Lewison LJ granted permission on Ground 2 but refused it on Ground On 21 June 2016 Sales LJ dismissed the appellant's renewed application for permission on Ground 1.
The details of the proposed development are described by Mitting J at paragraphs 1 to 3 of his judgment as follows:
"1. On 13 May 2012, China Gateway International (CGI) Limited ("CGI") applied for planning permission for an extensive development on two sites on the western fringe of Dover. As originally submitted, the application was for: (a) outline planning permission for: one, the construction of 521 residential units and a 90 apartment retirement 'village' on land at Farthingloe; two, the construction of 31 residential units and a hotel and conference centre at Western Heights; three, the provision of pedestrian access and landscaping work between the two sites; (b) full planning permission for: one, the conversion of the existing buildings on both sites for a variety of purposes; two, the conversion of the Drop Redoubt at Western Heights into a visitor centre and museum.
2. The Farthingloe site lies in a long, dry valley between the A20 and the B2001 to the west of Western Heights. It compromises of 155 hectares of agricultural and scrubland. All of it lies within Kent Downs area of outstanding natural beauty, which runs westward from the western limits of Dover.
3. Western Heights is a prominent hilltop to the west of Dover on which a series of fortifications were built before and during the Napoleonic wars to protect the western flank of Dover. They include the Citadel, now used as an immigration detention centre, and the Drop Redoubt and adjacent bowl. They are acknowledged to be the largest, or one of the largest, and best surviving examples of early nineteenth century fortifications in England. The site is a scheduled monument. The surviving fortifications are in a poor state of repair and are on the English Heritage at risk register."
At the end of paragraph 4 of the judgment Mitting J added this:
"The easternmost edge of the Farthingloe site is 340 metres from the western most fortification and about 1 and half kilometres from the Drop Redoubt."
It is said, and I believe it to be uncontentious, that the scale of the proposed development is unprecedented in an AONB.
There were substantial objections to the proposal from the appellant and others. Mr Westaway for the appellant, in the course of introducing the case, showed us documentation from the AONB Executive and from Natural England. However on 13 June 2013 the first respondent local authority resolved to approve the grant of planning permission subject to the completion of a section 106 agreement whose full details I need not rehearse: it included provision for a payment of £5 million to be expended on the refurbishment of the Drop Redoubt and its conversion to a visitor centre and museum.
After the resolution of June 2013 Natural England, the Kent Downs AONB Unit and the appellant applied to the Secretary of State to call in the planning application. We have been shown a submission from officials to the Minister which included this statement:
"If you decide not to call in this application, this could place the protected landscape of the Area of Outstanding Natural Beauty at risk… "
But the Secretary of State decided not to call it in. Notification of the grant of permission was given on 1 April 2015.
GROUND OF APPEAL SUMMARISED; THE NPPF
The sole remaining ground of appeal has been reformulated by Mr Westaway and may, I think, be refined further into two propositions: (1) the Planning Committee, in resolving to grant permission on 13 June 2013, failed properly to apply the requirements of paragraph 116 of the National Planning Policy Framework (the NPPF); (2) the Committee failed to give legally adequate reasons for the grant of permission. On Mr Westaway's presentation the reasons challenge included a distinct assertion that it was impossible to understand from the Minutes of the Committee meeting on 13 June 2013 why one "viability" case was preferred over another: I will return to that in due course.
Paragraphs 115 and 116 of the NPPF are at the centre of the case:
"115. Great weight should be given to conserving landscape and scenic beauty in… Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…
116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Consideration of such applications should include an assessment of:
• The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
• The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;
• Any detrimental effect on the environment, the landscape and recreational opportunities and the extent to which that could be moderated."
The focus of Mr Westaway's submissions is upon the last bullet point.
THE OFFICERS' REPORT
A very detailed report by officers of the council was before the Planning Committee on 13 June 2013. The report drew an important distinction between two distinct areas comprised in the Farthingloe development: "FL-B, which is predominantly green fields/agricultural land; and FL-C, at the eastern end of the site located on the former Channel Tunnel workers site…" (paragraph 2.153). FL-B is the more sensitive area (see, for example, paragraph 2.155). As the judge noted at paragraph 23 of the judgment the officer's report "made trenchant criticisms of the density and layout of the development proposed on the Farthingloe site". They start at paragraph 2.157, where it is said that the development design paid no regard to the differences in landscape character between FL-B and FL-C. Thus at 2.158 the officers point out that the proposed density of dwellings within the "more visually sensitive" FL-B is greater than in FL-C, and this is criticised at 2.159 (see also 2.178). There is a point about storey height at 2.160, and another at 2.162 concerning woodland planting and screening – a passage to which I shall have to return in connection with a particular point made by Mr Westaway.
The criticisms are pulled together at 2.211. Then at 2.212:
"Relative to the requirements of Policy DM16 [a provision in the Development Plan]… and the NPPF (paragraph 116), the proposals as presented would have a significant detrimental impact on the landscape and would result in long-term, irreversible harm to both the AONB and the urban edge of the town…"
See also 2.442.
Accordingly the officers were in favour of refusing permission for the development in the form proposed. However they recommended substantial modifications. Paragraph 2.215:
"Achieving a design solution for this location that would help moderate harm to the AONB and deliver a viable quality development is challenging. In view of the concerns relating to the deliverability and marketability of the indicative proposals, Smiths Gore [who had given the council expert advice on the scheme] (as part of the viability assessment) examined an alternative outcome. This suggested a more traditional, lower density development at Farthingloe of around 375 dwelling houses. Smiths Gore concluded that this would be more marketable, financially viable and could also afford the relevant monetary contributions (and £5m heritage payment) currently on offer. This would require a reduction in the Code for Sustainable Homes (CSH) rating from Code 4 to Code 3 (saving build costs of some £4,900 per average unit). This option was included in the information previously sent to and considered by the applicant's viability assessor (BNP Paribas) which has not been challenged and was also subsequently brought to the attention of the applicant, although no comments have been received to date."
See also 2.443, and 2.445:
"The proposals as presented are considered to fall short of demonstrating any suitable moderating effect. The recommendations in this report, as described, seek to address this and in a manner that safeguards development viability and delivers benefits in terms of housing quality."
A possible refinement of the approach set out at 2.215 was described at 2.216, which would reduce the...
To continue reading
Request your trial
-
Dover District Council v CPRE Kent
...79 before Lady Hale, President Lord Wilson Lord Carnwath Lady Black Lord Lloyd-Jones THE SUPREME COURT Michaelmas Term On appeal from: [2016] EWCA Civ 936 Appellant (Dover District Council) Neil Cameron Zack Simons (Instructed by Legal Services, Dover District Council) Appellant (China Gate......
-
R (on the application of Lancashire County Council) v Secretary of State for Environment, Food and Rural Affairs
...of the Supreme Court in Dover District Council v CPRE Kent [2017] UKSC 79, upholding the Court of Appeal's decision in that case ( [2016] EWCA Civ 936) and endorsing its approach in Oakley (see the judgment of Elias L.J., at paragraphs 61 and 62). As Lord Carnwath said in his judgment in D......
-
Mrs Karen Louise Oakley v South Cambridgeshire District Council Mr Len Satchell (Interested Party)
...volunteers. The need to prepare and agree reasons might also introduce an unwelcome element of delay into the planning system: see R (CPRE Kent) v Dover D.C. [2016] EWCA Civ 936 at [20] per Laws LJ. These sorts of factor are difficult for a court to assess and I think this court should be ......
-
The Queen (on the application of The Midcounties Co-operative Ltd) v Forest of Dean District Council Aldi Stores Ltd (Interested Party)
...planning officers' report to it. 72 The decision of Lang J in the Hawksworth case was considered by the Court of Appeal in R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936, in which the main judgment was given by Laws LJ. 73 At para. 20, having considered the judgment of Lang J in......
-
Contract Pactice Points Over The Past Nine Months
...an amendment which is only oral? Potentially, yes. Globe Motors Inc and others v TRW Lucas Variety Electric Steering Ltd and another [2016] EWCA Civ 936 Anti-oral variation clauses are traditionally inserted into construction contracts to stop the parties agreeing to changes orally, instead......
-
Planning Controversies Demand Clear Reasons
...belt case and other decisions is here. The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal's approach to the standard of reasons req......