R (Noble) v Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 28 September 2022 |
| Neutral Citation | [2022] EWHC 2402 (Admin) |
| Docket Number | Case No: CO/30/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2022] EWHC 2402 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/30/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice Centre
2 Redcliffe St, Bristol, BS1 6GR
Daniel Stedman Jones (instructed by Irwin Mitchell LLP) for the Claimant
Sancho Brett (instructed by Cornwall Council) for the Defendant
Hearing date: 10 June 2022
Approved Judgment
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30 AM on Wednesday 28th September 2022
A. Introduction
This is a claim for judicial review, by which the claimants challenge the decision of Cornwall Council dated 25 November 2021 (‘the Decision’) to grant conditional planning permission to the interested party for an extension to the premises of the Cape Cornwall Golf and Country Club in St Just, Cornwall (‘the Site’). The Site lies in the Cornwall Area of Outstanding Natural Beauty (‘AONB’) and along the designated Penwith Heritage Coast. The permitted development is described as follows:
“Construction of extension to function room, alterations to entrance to Clubhouse, two detached buildings to house additional guest accommodation, self-contained manager's accommodation, and various associated works and internal alterations.”
The Decision was a delegated one, made by a planning officer, following the recommendation made in an officer's report (‘the OR’).
The claim has been brought, with the permission of Lang J, on three grounds:
(1) S. 38 (6) Duty/AONB Duties: The Council breached its duty under s. 38(6) of the Planning and Compulsory Purchase Act 2004 (‘the PCPA 2004’) and/or provided flawed or inadequate reasons by:
a) Failing to give “direct consideration” as required by the applicable policy tests for development in an AONB and/or Heritage Coast;
b) Failing to have regard to the Cornwall AONB Management Plan 2016–2021 (‘the AONB Management Plan’);
c) Failing to have regard to potential harm to the area's dark skies from the proposed development; and
d) Failing to weigh the potential harm to the AONB in the planning balance and reach judgments as to whether the proposed development accorded with the development plan as a whole or how other important material considerations such as the National Planning Policy Framework (‘NPPF’) and AONB Management Plan Policy were determined;
(2) Intensification: The Council erred in law and/or provided flawed and/or inadequate reasons by:
a) determining to grant permission against the advice of the Cornwall AONB Unit as to intensification;
b) failing to take into account a material consideration and/or acting irrationally by failing to address the issue of intensification beyond the issue of a condition; and
c) misdirecting itself, in the light of Penwith District Council v Secretary of State for the Environment (1977) 34 P&CR 271 (‘ the Penwith case’), by finding that it would be “unreasonable” to impose a condition to control the potential intensification of the Site;
(3) Transport: The Council erred in law by and/or provided flawed and/or inadequate reasons for:
a) failing properly to inform itself and/or making the Decision without evidence as to transport impacts;
b) failing to have regard to a material consideration, namely, the objector's expert Transport and Safety Review from Vectos Transport Consultants (‘the Vectos Transport Report’); and
c) failing to address in the OR the substance of the conclusions of the Vectos Transport Report.
B. Factual background
The application for planning permission was made on 30 March 2021, accompanied by, among other documents, a design and access statement (‘the DAS’). The Site was converted from a farmstead to a golf club in the 1980s and 1990s. The DAS stated:
“The application site contains the Cape Cornwall Club Clubhouse, outside amenity space, practice putting green and car parking area, which is positioned on the Cape Cornwall headland approximately 1km west of St Just.
…
There are existing residential dwellings to the south, Nanpean Farm Cottage and Nanpean Farm Flats, which are of a similar appearance to Cape Cornwall Golf Club Clubhouse. To the west of the clubhouse is Nanpean Barns holiday lets. To the north west are Praze Cottages, a terraced row of traditional granite faced cottages with natural slate tiles and wooden sash window. To the north is the Grade II listed Porthledden Hotel.”
As well as being in the AONB and on the Heritage Coast, the Site is in the open countryside and lies about a mile from the nearest town, St Just. The Cornwall AONB unit website describes West Penwith as:
“a sparsely populated peninsula, ringed by high cliffs and rising to high, rocky moorland at its centre. Also known as the Land's End Peninsula, it is at the south-west extremity of England, surrounded on three sides by the pounding waters of the Atlantic Ocean. The area includes the fishing settlement of St Ives and a number of small villages. Access to most of the landscape is by narrow ancient lanes bounded by Cornish hedges.”
Since the decision was made, the area has been designated for its Dark Skies.
The DAS stated:
“The business has a history of failure which has resulted in some of the assets being sold off in the past. The new owners have identified an approach to increase letting accommodation and wedding event functionality and intend to improve and expand the business to this effect.” (Emphasis added.)
About 58 objections were received, including objections from the claimants based on, among other matters, the impact of intensification of the use in terms of noise, light pollution and traffic movements.
The AONB Unit made the following representations on 16 June 2021:
“The proposals seek a modest increase in the built form adjacent to the existing buildings associated with the golf club. We have no particular concerns about the location or form of the buildings proposed.
The provision of the additional accommodation and facilities at the club is identified to support events and weddings. Such use is likely to give rise to particular issues within the remote and somewhat isolated location. The noise, lighting and activity associated with such events will be in marked contrast to the existing natural qualities of the location where the relationship between the exposed coast cliffs and coastal landscape form the principal components of the designated landscape.
The introduction or intensification of such activity will be locally and more widely conspicuous and will detract from the wild and remote character of the location, particularly through the introduction of noise and light into the evening and night time landscapes.” (Emphasis added.)
The AONB Unit set out Policy MD9 of the Cornwall AONB Management Plan and commented:
“Of particular relevance to this application is the requirement to respect the ‘quality of place … dark skies and tranquillity’. The proposed development with its increased facilities and use for functions and weddings with their attendant effects would appear not to deliver this requirement.” (Emphasis added.)
The AONB Unit representation continues:
“The Cornwall Local Plan Policy 2 sets out broad and ambitious requirements for new development within the county particularly in regard to ‘Respecting and enhancing quality of place’. This aspiration is further amplified in the Cornwall Draft Design Guide which states that ‘development should contribute the sense of place; it should respond to the local historical cultural and landscape context and enhance and feel part of the existing settlement and landscape’. This development supporting intrusive and harmful uses will not provide for this.” (Emphasis added.)
The AONB Unit referred to Policy 23 of the Cornwall Local Plan and paragraph 172 of the NPPF (the predecessor to the current paragraph 176) and then stated:
The AONB enjoys the very highest level of landscape protection, equal to that of National Parks. The primary purpose of the designation is to conserve and enhance the natural beauty including attributes such as dark skies and tranquillity. Planning policy requires that development within the AONB deliver this purpose.
Whilst we have no in principle objection to the modest additional built form proposed, but have concern that the use of this will give rise to harmful effects on the local designated landscape in terms of light spill and noise.” (Emphasis added.)
C. Legal framework
There was no dispute as to the relevant legal principles which are well established.
Section 70(2) of the Town and Country Planning Act 1990 (‘the TCPA 1990’) provides, inter alia, that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the PCPA 2004 provides that “ If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise” (emphasis added).
The weight which should be given to a consideration is a question of planning judgment, which is entirely within the exclusive province of the local planning authority which is at liberty (provided that it does not lapse into any public law error) to give a material consideration whatever weight it thinks fit or no weight at all: Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Lord Hoffmann, 780F-H.
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