R (on the application of Irving) v Mid-Sussex District Council

JurisdictionEngland & Wales
JudgeMr Justice Gilbart
Judgment Date28 June 2016
Neutral Citation[2016] EWHC 1529 (Admin)
Docket NumberCase No: CO/2757/2015
CourtQueen's Bench Division (Administrative Court)
Date28 June 2016

[2016] EWHC 1529 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Gilbart

Case No: CO/2757/2015

The Queen on the application of

Felicity Irving
Mid-Sussex District Council
Mr J Ball T/A SDP Developers and Building Contractors
Interested Party

Andrew Sharland (instructed by Thomas Eggar, Crawley) for the Claimant

Robert Walton (instructed by Legal Department, Mid-Sussex DC) for the Defendant

The Interested party did not appear and was not represented

Hearing dates: 19 th May 2016

Mr Justice Gilbart


TCPA 1990

Town and Country Planning Act 1990


Planning (Listed Buildings and Conservation Areas) Act 1990

PCPA 2004

Planning and Compulsory Purchase Act 2004


National Planning Policy Framework (March 2012)


Local Planning Authority


Secretary of State for Communities and Local Government


Mid-Sussex District Council


Mid Sussex Local Plan


Cuckfield Neighbourhood Plan


In this matter Mrs Irving challenges the grant on 1 st May 2015 by MSDC of a planning permission, on the application of the Interested Party, to erect a new detached house on land to the west of Newbury, Courtmead Road, Cuckfield, West Sussex.


I shall deal with the matter under the following heads

a. The application site and surroundings;

b. Planning and procedural history;

c. The development plan and the housing land supply position;

d. NPPF guidance;

e. The officer's report;

f. Mr Sharland's submissions for the Claimant;

g. Mr Walton's submissions for the Defendant MSDC;

h. Discussion and Conclusions


I shall start by saying that in what is a very straightforward case, the Court was presented with bundles containing no fewer than 490 pages of documentary material. The vast majority was quite irrelevant, and included, for example, all the pages in a development plan or planning policy document rather than just those which were relevant. My estimate is that no more than a total of 50 pages were actually relevant, even if the matter had been heard by a judge unfamiliar with planning law and practice.


But that said, the arguments deployed require my setting out relevant Development Plan policy, and the officer's report to Committee, in a little detail.

(a) The application site and surroundings


The site is an area of open land adjacent to the end of Courtmead Road, which is a private road. Until comparatively recently it was a play area for children. Photographs show a flat grassed area of land bounded by hedges, and with a gated access. It is rectangular, with its longer sides being to east and west. The eastern boundary is the boundary of a house called "Newbury" which is a detached house sitting at the western end of a row of such houses on the southern side of Courtmead Road. It has a long garden to the rear. The northern side is bounded by Courtmead Road. North of the road lie a pond and the old vicarage. To the west are allotments on an open area of land beyond which sits the church.


To the south the land is open. The site has views to the south towards the South Downs Area of Outstanding Natural Beauty (AONB). The northern part of the site lies within the Cuckfield Conservation Area which includes all the areas to the north and east along Courtmead Road, and the area to the west beyond the allotments. There are significant views across the site. In the Neighbourhood Plan it states

"one of the distinctive features of Cuckfield Village is the visual connectivity with the surrounding countryside from public places. Map 5 shows the locations at the edge of the village where there is direct visual connectivity with the countryside……. these distinctive views combine shorter uncluttered views of the more immediate setting of the village with views across the Low Weald to the South Downs National Park to the south……."

Map 5 shows this site in the foreground of View 10 from the area near the church. Having seen the photographs, it is obvious (and Mr Walton did not seek to argue otherwise) that the views across it from the north are of an open grassed area leading on to the view of the countryside beyond. Those views have policy protection under Policy CNP 5, to which I shall make reference below.


It follows that this undeveloped grassed area, formerly used as a play area, lies on the edge of Cuckfield, with undeveloped land on two and a half sides (west, south and the southern end of the eastern side), in the Conservation Area, and in an area identified by part of the Development Plan (the neighbourhood plan) as forming part of the direct visual connectivity between the village and the countryside beyond.

(b) Planning and procedural history


The site is owned by MSDC. It had been used as a play area for children. In 1994, a Planning Inspector, appointed to consider objections to the Haywards Heath Local Plan, reported on an objection to the drawing of the built up area boundary at this point so as to exclude the application site. The Inspector commented that

"The land is not readily seen looking along Courtmead Road but, along the footpath at the end of the road, it forms a significant part of the open break between the line of houses and the Parish Church to the west giving long views to the countryside to the south. If development were to take place, it would reduce the value of the open gap and bring development closer to the church which is an important building in the Conservation area. Whilst 'Newbury' stands out at the end of the line of houses, a further dwelling would not improve this situation and I am not convinced that a landscaped screen on the western boundary would be guaranteed. The site, together with the allotments and the church grounds, presently blends into the countryside towards the bypass and should be protected by Policy HH2/1."

Accordingly, the Proposal Map was modified to show the built-up area boundary to run along the western boundary of 'Newbury'.


In December 2013, MSDC granted itself outline planning permission for residential development, but by virtue of Regulation 9 of the Town and Country Planning General Regulations 1992 that did not run with the land. In September 2014 an application was made by the Interested Party to develop the land for residential development consisting of one house. That permission was granted in December 2014, but after the Committee had been advised that it was not necessary to consider its value as open space as the grant of the previous permission meant that the loss of open space had been accepted. That permission was challenged by the Claimant way of an application for judicial review, and after Patterson J had granted permission for the Claimant to make the application, MSDC accepted that it had been granted unlawfully (on the basis that the advice concerning open space was in error) and agreed to pay the Claimant's costs pursuant to a Consent Order.


A further application was made in March 2015, which was granted on 1 st May 2015. Proceedings were issued by the Claimant on 11 th June 2015. Dove J refused leave on 27 th July 2015. Permission was subsequently granted on grounds 1–2 at an oral renewal hearing. On 23 February 2016 Lewison LJ granted permission to apply under Grounds 3–5 as well.

(c) The Development Plan and the housing land supply position


The Development Plan has three elements

i. The Mid Sussex Local Plan (2004) (MSLP)

ii. Small Scale Housing Allocations to 2016 (October 2008)

iii. Cuckfield Neighbourhood Plan (October 2014) (CNP).


The process has started which will lead to the adoption of a District Plan. It has reached the stage of a pre submission draft.


In the MSLP, the following policies should be noted:

a. Policy B6 states that

"proposals for development which would result in the loss of areas of public or private open space of particular importance to the locality by virtue of "recreational, ……. conservation…… or amenity value will not be permitted. Where such open space is to be lost to development, for whatever reason, appropriate alternative provision may be sought elsewhere."

b. Policy B12 states that

"The protection of the special character and appearance of each Conservation Area will receive high priority. When determining planning applications for development within or abutting the designated Conservation Areas, special attention will be given to the desirability of preserving or enhancing the character or appearance of the area and to safeguard the setting of any Listed Building. Circumstances may arise where the importance of open space, including private gardens, is such that development upon it will be resisted in the overall interest of the Conservation Area


c. Policy B15 states that

"Development affecting the setting of a Conservation Area should be sympathetic to, and should not adversely affect, its character and appearance. In particular attention will be paid to the protection or enhancement of views into and out of a Conservation Area, including where appropriate the retention of open spaces and trees."

d. Policy R2 states that

"proposals which would result in the loss of existing formal or informal open space with recreational or amenity value whether privately or publicly owned, will only be permitted where the applicant can demonstrate that a replacement site has been identified and will be developed to provide facilities of an equivalent or improved standard…….."

e. Policy C1 applies to development proposals on land outside the built up area boundary, which this site is. It states

"Outside built up area boundaries……..the remainder of the plan area is classified as a Countryside Area of Development Restraint where the countryside will be...

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