R Liverpool Open and Green Spaces Community Interest Company v Liverpool City Council

JurisdictionEngland & Wales
JudgeMr Justice Kerr
Judgment Date18 January 2019
Neutral Citation[2019] EWHC 55 (Admin)
Docket NumberCase Nos: CO/4301/2017 and CO/778/2018
CourtQueen's Bench Division (Administrative Court)
Date18 January 2019

[2019] EWHC 55 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Civil Justice Centre,

1 Bridge Street West

Manchester M60 9DJ

Judgment handed down at:

The Central Criminal Court

Old Bailey, London EC4M 7EH

Before:

Mr Justice Kerr

Case Nos: CO/4301/2017 and CO/778/2018

Between:
The Queen on the application of Liverpool Open and Green Spaces Community Interest Company
Claimant
and
Liverpool City Council
Defendant

and

(1) Redrow Homes Limited

and

(2) Arthur Brooks (on behalf of Mersyside Live Steam and Model Engineers)
Interested Parties

Ned Westaway and Charles Streeten (instructed by E. Rex Makin & Co) for the Claimant

Paul Tucker QC and Constanze Bell (instructed by Liverpool City Council) for the Defendant

David Manley QC and Anthony Gill (instructed by Redrow Homes Limited) for the First Interested Party

The Second Interested Party did not appear and was not represented.

Hearing dates: 5 th and 6 th November 2018

Approved Judgment

Mr Justice Kerr

Introduction:

1

This is my judgment in two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into 12 apartments.

2

The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park. The interested parties are the developer of the proposed housing (the developer), and a representative of the body that runs the miniature railway, which it intends to relocate. The latter has taken no part in the case.

3

Readers of this judgment should understand that it is not my function to decide whether these proposed developments should or should not proceed, in the public interest. That is for the democratically accountable LPA, properly applying the law, to decide. My task is only to determine whether, in granting the two planning permissions, it properly applied the law and, if not, whether the decisions should be quashed and the matter reconsidered.

4

There are five wide ranging grounds of challenge. Limited permission was granted by His Honour Judge Davies in separate orders made on 9 January and 10 April 2018 to proceed with only one of the five grounds. The other four have been renewed orally and were argued before me on a “rolled up” basis. The sole ground on which permission was granted in both claims was that the LPA had misinterpreted its policy in its development plan.

5

The LPA and the developer resist the claims and argue that the two planning permissions were lawfully granted, contrary to the arguments advanced by LOGS. And they say that even if that is wrong, I must refuse the remedy sought because it is highly likely that if there was any error of law, the outcome would not have been substantially different had the conduct complained of not occurred (section 31(2A) of the Senior Courts Act 1981).

Facts:

6

The park is a stretch of open ground with grassed areas, plants and trees, created in 1902 by the then Liverpool Corporation. There is an adjacent school with playing fields, allotments, a picnic area, a lake, a woodland trail, a miniature railway, a grade II listed building, Beechley House, with grade II listed riding stables and surrounding grounds. Parts of the park (including part of the application site for the residential development) were purchased by the Liverpool Corporation in 1914 and are now owned by the LPA.

7

In November 2002, the LPA adopted its Unitary Development Plan (the UDP), entitled A Plan for Liverpool. A new draft local plan was in the process of being consulted upon with a view to adoption at the time of the hearing before me. It is agreed that when the challenged decisions were made, the operative plan was the UDP. As explained at paragraph 1.1, it was adopted as a requirement under the Local Government Act 1985.

8

The UDP includes a chapter on Strategic Objectives and Policies (chapter 5). The policies in that chapter are prefixed “GEN”, standing for “general”. Chapter 7 is entitled Heritage and Design in the Built Environment; the policies in it are prefixed “HD”, for “Heritage and Design”. Chapter 8 bears the title Open Environment; hence the policies in it are prefixed “OE”. The meaning and content of policies in those chapters was debated before me.

9

In 2015, the developer was in discussions with the LPA concerning its proposal to build a new residential development in the park. A partnership agreement was entered into between the LPA and the developer on 16 February 2015 to regulate and take forward the latter's proposal for a housing development at Beechley House and the surrounding area.

10

Following a joint site visit to Harthill depot, part of the application site, the developer emailed the LPA in June 2015, expressing concern that the land was not necessarily closed off to the public and was therefore vulnerable to “a town and village green application”. The developer suggested that the LPA should erect signs around the site stating that it was “private land”.

11

In November 2015 the LPA passed a resolution welcoming the mayor's initiative “to free up the land on Harthill Road currently occupied by Beechley Stables, Calder Kids and the Miniature Railway to support a housing development scheme” and welcoming the mayor's “clarification that [the LPA] is not selling any part of Calderstones Park”. The LPA's view was that the application site was not part of the park.

12

That was, as a note explained, because the three sites “sit outside of Calderstones Park and were not available to the public without authorisation”. Opponents of the proposal contended that the application sites for the two planning permissions are part of the park and as such held in trust for public use. They pointed to other planning application documents from 2010, which had treated the same land as “within” the park.

13

In July 2016, opponents of the proposed development scheme made an application under the Commons Act 2006 for registration of a paddock on the Harthill Estate and woodland trail as a town or village green. They argued that local inhabitants had used that land as of right since about 1913, continuously and without force, secrecy or permission. That application has not yet been determined.

14

In February 2017, the LPA's interim head of planning produced a report on the developer's application (no 16F/2049) to build the 51 new dwellings (the officer's report or “OR”). It was a detailed document which, it is agreed, may be taken to record the reasons for the planning committee's subsequent decision to grant that application. It began, as is usual, by describing the site and the proposals and summarising the responses of those consulted, including objectors, of which there were many.

15

The OR then set out relevant extracts from the National Planning and Policy Framework (NPPF), in the then current version dated 27 March 2012. This was of particular relevance in relation to the heritage assets forming part of the application site. Reference was made to the applicable statutory provisions and policies in the UDP, to which I will return when considering the parties' submissions and my reasoning and conclusions.

16

There was then an “Officer Assessment” of the proposals, covering 10 numbered issues of which several are relevant to the present challenge. Having considered these, the OR concluded by recommending that planning permission for the proposal should be granted subject to conditions including starting development within three years of the date of permission, and development in phases following relocation of the Beechley Riding Stables, Calder Kids and the miniature railway.

17

The most important conclusions in the OR that are relevant for present purposes were as follows. First, while the site could be called a park, the “elements of the site that constitute the element [sic] of the application site, do not meaningfully function as a ‘park’ in any meaningful sense of the word”. There was no policy impediment, the OR stated, to the development arising from it being a “park”.

18

Second, the site was part of the “Green Wedge” land as defined in the UDP, but was “of a different character to other parts of the Green Wedge”, its openness was “already somewhat compromised” and the redevelopment proposed “in the main, would not unduly impact on the predominantly open character of the wider Green Wedge”. The interim head of planning considered that “the proposal would not conflict with the aims and objectives and part (i) of Saved Policy OE3”.

19

Third, the OR made the point that the proposal would provide much needed housing and the LPA was required to meet the government's target of five years' worth of housing supply. Although the site was greenfield not brownfield and brownfield sites are generally preferable, each site must be considered on its merits.

20

Fourth, the harm to heritage assets would be less than substantial. This had to be balanced against the public benefits of the proposals. The interim head of planning considered that the balance favoured granting permission: “the scheme would provide a public benefit in securing its [Beechley House's] optimum viable use. As such … this part of the scheme is acceptable and accords with both the NPPF and saved policy HD4 of the UDP”.

21

The same conclusion applied to the other heritage assets affected by the scheme but not on the site; so that:

“[o]verall … the proposed conversion and alterations of the designated heritage assets … will sustain and enhance their...

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