R Hill v Stroud District Council Rooksmoor Mills Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 01 December 2016 |
| Neutral Citation | [2016] EWHC 3667 (Admin) |
| Date | 01 December 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2988/2016 |
[2016] EWHC 3667 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
THE PLANNING COURT
2 Redcliff Street
Bristol
BS1 6GR
The Hon. Mr Justice Holgate
CO/2988/2016
and
Mr J Burton (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant
Mr M Reed (instructed by Stroud District Council) appeared on behalf of the Defendant
The claimant, Mr Jeremy Hill, together with his wife, owns and lives at a Grade I listed building, The Old Priory, Woodchester, Stroud. He seeks permission to apply for judicial review of the decision of 3rd May 2016, by the defendant, Stroud District Council, to grant a hybrid planning permission to the interested party, Rooksmoor Mills Ltd, for development at Rooksmoor Mills, Bath Road, Woodchester.
The permission granted was in two parts. First, full planning permission was granted for the construction of 24 residential units, reinstatement of mill pond, construction of two new accesses and associated car parking, landscaping and the refurbishment of a cottage building and second, outline planning permission for 30 residential units plus 1300 square metres of commercial floor space within use classes B1, B2 and B8, with external appearance and landscaping reserved for subsequent approval.
On 15th July 2016 Supperstone J ordered that the application for permission be adjourned be heard at a "rolled up" hearing which has taken place before me today.
The background to the matter is conveniently summarised in the officer's report to the Development Control Committee Meeting on 9th June 2015, in paragraphs 1.1 to 1.3 which read as follows:-
"1.1 The application site lies outside of a defined settlement and immediately adjacent to the Cotswold Area of Outstanding Natural Beauty (AONB) but within the designated Stroud Industrial Heritage Conservation Area ["IHCA"].
1.2 The application site consists of a range of former mill buildings located parallel to the A46 in the hamlet of Rooksmoor. The site is directly adjacent to the main county highway with the Grade II listed buildings of The Fleece, Rooksmoor House and Grigshot House on the opposite north-eastern side, whilst to north western and southern sides are the Nailsworth-Woodchester cycle path and the former mill pond. These north western and southern boundaries contain a number of established trees with the mill pond serving the now redundant water wheels tunnels and culverts beneath the mill and surrounding car park.
1.3. The 1.08 ha site is currently in low key commercial usage for retail and storage purposes and has direct access from the adjacent highway with informal pedestrian access across the mill pond area. The existing buildings are predominantly of single storey brick construction being the remains of larger flock mill buildings, which occupied the site prior to the fire in the early 1930s."
The proposal would involve the demolition of most of the existing buildings and the construction of new buildings to a contemporary design.
Paragraph 8 of the claimant's detailed statements of facts and grounds, contains a helpful description of the adjacent listed buildings. Rooksmoor House is a Grade 2* listed building, a mid-16th century house, the curtilage of which is some 20 metres from the application site. The house itself lies some 30 metres away. It has a strong historic association with the mills as it was originally the mill owner's home. The Fleece Public House is a Grade II listed building. To the west of the site lies the Old Priory, a Grade I listed building. It is a large country house dating from around 1580 and is set within the remains of Woodchester Roman Villa, a scheduled ancient monument pursuant to the Ancient Monuments and Archaeological Areas Act 1979. It has been described by Historic England as one of fewer than 10 major Roman villas in Britain and it is the site of the Orpheus pavement, the second largest Roman villa mosaic in Western Europe.
The principles upon which this court may be asked to review decisions of a local planning authority to grant planning permission and the contents of an officer's report are well established and have been set out in such authorities as R v Selby DC ex parte Oxton Farms (Court of Appeal, 18th April 1997), R v Mendip DC ex parte Fabre [2000] 80 P & CR 500 and R v (on application of Zurich Assurance Ltd v North Lincolnshire [2012] EWHC 3708 (Admin).
The application was the subject of a report by officers to the Development Control Committee Meeting on 9th June 2015. At that meeting members resolved to grant planning permission.
Mr Hill was concerned about the adequacy of the assessment in that report of the effect of the proposal on heritage assets, in the context of sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act") and relevant policies in the National Planning Policy Framework ("NPPF"). He therefore instructed solicitors to send letters to the defendant setting out criticisms of the report. As a result a further report was put to members of the Committee on 14th July 2015. This document repeated the content of the first report but added at the beginning a section dealing with the effects upon heritage buildings in more detail in order to address the criticisms which had been raised at that stage. Members were advised that they should consider only the new material contained in that report and not revisit matters which had otherwise been covered in the first report (see pages 394, 396 and 399 of the trial bundle).
The new material gave no consideration to the relationship between heritage building issues and paragraph 14 of the NPPF, whether the tilted balance in favour of sustainable development should be treated as applicable or whether the heritage buildings balance (see paragraph 134 of the NPPF) should or should not be considered within that context.
Ground 4 of the challenge complained that no consideration had been given in the report to paragraph 136 of the NPPF, which states:-
"Local planning authorities should not permit loss of the whole or part of a heritage asset without taking all reasonable steps to ensure the new development will proceed after the loss has occurred."
It was pointed out that no condition had been imposed upon the grant of planning permission to secure compliance with that requirement. The defendant has dealt with this matter by requiring the interested party to enter into an obligation under section 106 of the Town and Country Planning Act 1990, imposing a binding stipulation on the land to the same effect as would have been required had a condition been imposed on the planning permission. In the light of such authorities as R (Nicholson) v Allerdale Borough Council [2015] EWHC 2410 (Admin) (paragraphs 81–103), it is common ground that this legal flaw has been overcome so as to make it inappropriate to ask the court to quash the decision on this particular ground. Instead, in accordance with the decision of the Supreme Court in R (Hunt) v North Somerset Council [2015] 1 WLR 3575, I agree that the appropriate remedy is for declaratory relief to be granted.
Under ground 1 the claimant submits that the defendant failed to carry out the separate balancing exercise required by paragraph 134 of the NPPF for harm caused to heritage assets and instead subsumed that exercise entirely within the tilted balance under paragraph 14 of the NPPF. Ground 1 was the only ground argued before me, because on reading the papers it seemed to me that the claimant had a strong case on this point which needed to be answered by the defendant. Indeed, paragraph 6 of the defendant's skeleton very fairly and properly accepted that there was a legal error in paragraph 15.26 of the officer's reports to both meetings. However, it was submitted on behalf of the Council that the effect of this flaw was limited to that one paragraph and that reading the reports as a whole ground 1 was not made out.
On the other hand, if the court were to decide that the complaint in ground 1 was established, then it was also accepted that the defendant's decision could not be upheld either by reference to the test in Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P & CR 306, or section 31(2A) of the Senior Courts Act 1981. Consequently, the oral argument in the hearing dealt with ground 1 alone supported also by the written submissions in the skeleton arguments.
At the conclusion of those oral submissions I indicated that I had reached the clear conclusion that ground 1 would have to be upheld and the decision quashed. The parties were then given an opportunity to consider their respective positions with regards to grounds 2, 3 and 5. Mr Matthew Reed, on behalf of the defendant, stated that:
(i) He was without instructions to enable him to tell the claimant whether his client would wish to ask for permission to appeal in relation to ground 1; and
(ii) The defendant was not asking for grounds 2, 3 or 5 to be determined by the court, whether as to the application for permission to apply for judicial review or the substantive application.
Mr James Burton, on behalf of the claimant, was content not to argue grounds 2, 3, or 5 on the basis that if the defendant did seek and obtain permission to appeal to the Court of Appeal on ground 1, his client would be able to raise grounds 2, 3 and 5 through a respondent's notice. I was not asked to consider...
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