R Felicity Irving v Mid Sussex District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWHC 3406 (Admin) |
| Date | 12 December 2019 |
| Docket Number | Case No: CO/834/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/834/2019
Andrew Sharland QC (instructed by Irwin Mitchell LLP) for the Claimant
Paul Brown QC and James Neill (instructed by Sharpe Pritchard LLP) for the Defendant and Interested Party
Hearing date: 19 November 2019
Approved Judgment
The Claimant applies for judicial review of the decision of the Defendant (“the Council”) to grant planning permission to itself, on 18 January 2019, for the erection of a large dwelling house, with an integral garage, on an open greenfield area which it owns at Courtmead Road, Cuckfield, Sussex (“the Site”).
The Claimant lives in a neighbouring house. For many years, she has objected to the grant of planning permission, on the grounds that the local community wish to continue to use the Site for recreational purposes, which they have done since about 1938. In about 2013, the Council has locked the Site, to prevent local residents from gaining access.
Permission was initially refused on the papers, but granted at an oral renewal hearing by Tim Mould QC, sitting as a Deputy Judge of the High Court, on three grounds only.
The Claimant contends that the Council's grant of planning permission to itself was unlawful for the following reasons:
i) Contrary to section 70(2) of the Town and Country Planning Act 1990 (“TCPA 1990”), the Council failed to take into account Policy DP12 and Policy DP15 which were relevant development plan policies, as the Site is situated in the countryside for planning purposes. The officer's report was materially misleading as it purported to identify the relevant policies but excluded Policies DP12 and DP15.
ii) The Council adopted an inconsistent and unlawful approach to the assessment of the “public benefit” of a single dwelling house;
iii) The Council's conclusion that the very limited public benefit from one house outweighed the substantial weight to be accorded to the harm to the Conservation Area was irrational.
Facts
The Site is an open grassed area, on a slope, bounded by hedgerows and post and rail fencing, which is approximately 0.3 ha (0.77 acres) in size.
It lies at the western end of Courtmead Road, on the southern edge of the village of Cuckfield. A footpath, which is a public right of way, runs along the north boundary of the site leading to Holy Trinity Church (Grade 1 listed) and the centre of the village, which is located some 110 metres to the west of the Site. Between the Church and the Site, there are allotment gardens, an orchard and the Church graveyard.
There is a detached house, set in grounds, to the east of the Site (which belongs to the Claimant), and which is typical of the other large detached houses in Courtmead Road, mainly developed in the 1930s.
There is open land to the south of the Site, and from the Site and the public footpath, there are fine views across open countryside, towards the South Downs.
The Site was transferred to Cuckfield Urban District Council in 1938, and according to the Claimant, local residents in their 80's and 90's recall that in their youth it was used for maypole dancing, picnics, and other Church-led activities. The Site is known locally as the “Play Meadow” and for decades it has been used as a play area for children, dog walking, and community activities. The Church used it for the outdoor activities of its youth group and Sunday School. The Next Step Nursery School and the local Brownies pack also made regular use of it. In 2013, it was locked by the Council to prevent public access, which has resulted in complaints from the local community.
Earlier grants of planning permission
The Council has attempted to develop the Site in the past, but previous grants of planning permission have been found to be unlawful.
On 18 December 2013, the Council granted itself outline planning permission for a large detached house and double garage on the Site. By virtue of Regulation 9 of the Town and Country Planning General Regulations 1992, this permission did not run with the land.
In September 2014, SDP, a developer applied for planning permission for a large detached house on the Site. In December 2014, the Council granted SDP planning permission. This grant was challenged by the Claimant, and permission to apply for judicial review was granted. On 23 April 2015, the Council accepted that the permission had been granted in error and agreed to the quashing of the permission.
A further (identical) application was made by SDP in March 2015. The Council granted planning permission on 1 May 2015. This decision was also challenged by the Claimant, and it was quashed by the High Court on 28 June 2016 ( R (Irving) v Mid-Sussex District Council [2016] EWHC 1529 (Admin)). The Council did not appeal.
Gilbart J. quashed the grant of planning permission on two grounds. He concluded that the Council had adopted an unlawful approach to the assessment of harm to the Conservation Area. In particular, he found that the statement in the officer's report that “…while there is damage to a component of the heritage asset i.e. the conservation area, the special character of the conservation area as a whole will be preserved” was incorrect as a matter of law (at [57]–[58]). Gilbart J. further concluded that the development was contrary to, inter alia, Local Plan Policy B12 and National Planning Policy Framework (“the Framework”) (2012) paragraphs 132 to 134.
At paragraph 63 of his judgment, Gilbart J. stated:
“One then turns to the arguments advanced for the benefits outweighing the harm. It is very hard to understand how it is said that the construction of one house (albeit an attractive one in a location close to facilities) at this location can amount to substantial public benefits of the kind contemplated in paragraph [132] of NPPF, but even if that is a rational view, it is expressed in the context of an approach where the assessment of harm is flawed, for the reasons already given.”
At the time of both the 2014 and 2015 applications and decisions, the Council could not demonstrate a 5 year housing land supply and so a “tilted balance” was applied under paragraph 14 of the Framework, in favour of development. That position has since changed as the Council can demonstrate a 5 year housing land supply.
In December 2016, the Claimant brought a challenge to, inter alia, the 2013 planning permission. She also challenged the Council's failure to consider whether to quash the 2013 planning permission in light of Gilbart J.'s judgment. In June 2017, the High Court dismissed the claim on the grounds of delay. However, Cranston J. did not doubt the correctness of Gilbart J.'s substantive findings.
The current grant of planning permission
On 13 July 2018, the Council applied to itself for planning permission to construct a large house with an integral garage at the Site. Unlike the Council's 2013 application, the benefit of the permission was not limited to the Council. The Claimant, the Parish Council and many other local residents objected to the application.
The application was considered by the Council's Planning Committee on 17 January 2019. The Officer's Report (“OR”) recommended the grant of planning permission. The summary stated:
“In summary, this is a case where it is considered that the proposal complies with some policies within the development plan but conflicts with others. It is considered the proposal complies with policies DP6, DP21, DP26, DP34 and DP38 of the DP whereas there is a conflict with policy DP35 of the DP. It is considered the proposal complies with parts d), e), f) and g) of policy CNP1. Given your officers view that there would be less than substantial harm to the conservation area it is considered there would be some conflict with parts a) and b) of policy CNP1 in the CNP. It is also considered there would be some conflict with parts a), b), c) and d) of policy CNP5 in the CNP.
It is your Planning Officer's view that there is less than substantial harm caused to the setting of the conservation area from the proposal (within the scale of “less than substantial harm” it is considered that the harm is at the lower end of the scale) and that given the statutory presumption in favour of preservation, this harm must be given significant importance and weight.
Overall given the degree of compliance with the policies in the development plan that have been identified it is your officer's view that the proposed dwelling is an acceptable development on the site. The public benefits of providing a well-designed dwelling on the site are felt to outweigh the less than substantial harm to the CCA (which has been afforded significant importance and weight) that has been identified in this report.
To conclude it is your Officer's view that whilst there is conflict with some policies in the development plan as set out above, overall the planning application complies with the development plan when read as a whole. The scheme is for a dwelling in a sustainable location that accords with policy DP6 of the DP, which is the policy that sets out the settlement hierarchy for the District. As such the principle of the dwelling is supported by DP6. There are not considered to be any other material considerations that would indicate that the application should be refused.
In light of all the above it is recommended that the application is approved.”
The Planning Committee unanimously decided to grant the application for planning permission, subject to various conditions, and planning permission was granted on 18 January...
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