R (English) v East Staffordshire Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Flaux |
| Judgment Date | 02 November 2010 |
| Neutral Citation | [2010] EWHC 2744 (Admin) |
| Docket Number | Case No: CO/9102/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 November 2010 |
[2010] EWHC 2744 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull St
Birmingham,
B4 6DS
Before: The Honourable Mr Justice Flaux
Case No: CO/9102/2010
Hugh Richards (instructed by Ansons LLP) for the Claimant
Graham Machin (instructed by David Duckitt Head of Legal and Democratic Services) for the Defendant
Peter Village QC and Andrew Sharland (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing date: 21 October 2010
Mr Justice Flaux:
On 30 September 2010, HHJ McKenna sitting as a Judge of the High Court ordered the Claimant's application for permission to apply for Judicial Review to be heard in Court, on an expedited basis, during the week of 18 October 2010. By his application the Claimant seeks to quash the grant of planning permission by the Defendant Council on 24 June 2010 for the construction of 28 detached houses at the National Football Centre, St George's Park, Burton on Trent, Staffordshire (“the NFC”). At the end of the hearing on 21 October 2010, I indicated that the application for permission was refused, but that I would give reasons for that decision in a judgment to be handed down at a later date. This is that judgment.
The background facts to the application are as follows. The planning application was made by the Interested Party, National Football Centre Limited (“NFC Ltd”) a wholly owned subsidiary of the Football Association (“the FA”). The application was made under cover of a letter from planning consultants Nathaniel Lichfield & Partners to Mr Tim Furnell Chief Planning Officer with the Council, dated 24 February 2010, which stated that the housing development was required to “enable” the implementation of the NFC, for which planning permission was also being sought. The planning permission in respect of the NFC was a revised application from that made when planning permission was originally granted in 2001. Construction at the site had been suspended in about 2004, due to financial constraints. The revised application was not only to provide a national football centre of excellence for football training and development, which England distinctly lacks compared with other European countries, but a 228 bedroom hotel to provide appropriate accommodation for those attending courses.
It appears from a recent witness statement of Mr Alexander Horne, General Secretary of the FA, that the FA was intending originally to invest directly itself in the construction work now proposed, in addition to its original investment in the site, but that, in 2009, following the collapse of one of its domestic broadcast partners, Setanta, the FA suffered a drop in revenues. Accordingly, the FA asked the board of NFC Ltd to find funding for the NFC scheme without the need for recourse to central FA budgets.
It was in that context that the letter from the planning consultants explained that the development of the NFC “will be funded principally by the FA, Umbro, 'the football family', sponsorship, development of the hotel and public sector grant. However, even with these revenue streams, there is a gap in funding.” It was to meet some of that gap that the residential development was required. The letter described the two developments as “inextricably linked” and explained how the residential development was required to “enable” the implementation of the NFC.
With the planning application, NFC Ltd submitted a financial report which, according to the letter, explained:
“how 28 detached houses (open market) will 'fill' about 50% of the funding gap. Whilst less than the 'minimum' that is required to secure the delivery of St George's Park, the funding that has already been secured from other sources will enable the development of the revised proposals for the NFC to commence. It is expected that additional funding will be secured should planning permission be granted. A planning permission indicates a scheme is certain and deliverable which results in greater interest from developers/lenders/sponsors and investors. … Residential development is required to enable the delivery of the revised proposals and, for the reasons given in the application documents is acceptable.”
The financial report evidently contained financial information which could have damaged the FA's and NFC Ltd's commercial interests, in particular in relation to negotiations with third parties such as potential operators of the hotel. It also contained actual costings from a contractor which were highly market sensitive in terms of the tendering for the construction contract. Accordingly the report was provided to the Council's planning department on the basis that it was highly confidential and should not be disclosed to any third party without prior written consent. NFC Ltd also indicated to the Council that in its view, the report was exempt from disclosure under the Freedom of Information regimes.
The Council's planning department accepted the basis upon which this financial report was submitted and did not disclose it either to the public or to the members of the Planning Committee. However, the Council did not simply accept the financial information provided at face value, but commissioned an independent review from DVS Property Specialists (a commercial arm of the Valuation Office Agency) to check the figures to ensure that the alleged funding gap existed and that the residential development would plug some of that gap. DVS received the financial report and information on the same strictly confidential basis as had the Council. DVS's review verified NFC Ltd's figures confirming that the funding gap did exist. DVS considered that the development might plug as much as 85% of the funding gap. Again the Council did not disclose the DVS review to the public or the members of the Planning Committee.
On 10 May 2010, the Claimant's planning agent, Janet Hodson, submitted a consultation response to the planning application. It identified planning policy objections to the development of 28 houses in the open countryside. As to the 'enabling development' case being advanced, the objection was as follows:
“The financial viability exercise that seeks to demonstrate this, is not in the public domain and cannot be scrutinised by objectors, so no one has had the opportunity establish how robust such an analysis actually is. There is no parallel between enabling development to support Listed Buildings upon which the applicants seek to rely and this scheme. In any event those financial appraisals relating to listed buildings are always in the public domain and are open to scrutiny by the public, that is not the case here.
There is no justification that the funding gap should be made up from a housing development in the open countryside and objectors may well ask where does this reasoning end. Does this mean that any one who has a funding gap on a significant project should adopt this approach, seek development in the open countryside and then not make the viability assessment open to scrutiny. ….”
The Chief Planning Officer Mr Furnell prepared written reports to the Planning Committee on both the proposed developments. The report on the residential development advised, inter alia:
“A confidential Financial appraisal has been submitted in relation to the applicant's submission that the proposed housing development is required to help close a funding gap, and hence 'enable' the NFC sport/hotel scheme at St Georges Park.
….
Barton Parish Council and CPRE also raised issues over the 'funding gap'
Burton Civic Society objected asking: “Has the FA exhausted all other possible sources of funding before seeking to contravene the Local Plan?”
Enabling Development was identified by that report as being a main issue. The report then described the financial position as follows:
“Financial information submitted seeks to demonstrate that the development of the NFC will be funded principally by the FA, Umbro, 'the football family', sponsorship, development of the hotel and public sector grants. The issue for the FA is that even with these funding streams, there is what they describe as a 'funding gap'. They cite this as the reason for submitting this associated planning application for 28 dwellings, and refer to how this is 'inextricably linked' to the NFC proposals.
The Council has obtained independent verification of the financial information provided by the FA through DVS…
On balance therefore the benefits of the NFC outweigh any residual harm caused by the housing development proposed, and the principle of housing here (linked through an appropriate Section 106 Obligation to the substantial completion of the NFC) is acceptable.”
The Planning Committee meeting took place on 17 May 2010. It was attended by a number of objectors including Janet Hodson on behalf of the Claimant. There is a transcript available of the proceedings, which were recorded by the Council. Members of the Committee were told by Mr Furnell in his presentation that the financial information was confidential but that: “We have sought verification of that analysis through a third party, a reputable national body who have verified that the figures provided are accurate and up to date. They offer no commentary on the issues that prompts but I can assure you that those figures have been verified.”
Later in his presentation, Mr Furnell said this:
“Let's be clear that...
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