R Patrick Hardcastle v Buckinghamshire Council
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 16 November 2022 |
| Neutral Citation | [2022] EWHC 2905 (Admin) |
| Docket Number | Case No: CO/1608/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2905 (Admin)
Sir Ross Cranston
(siting as a High Court Judge)
Case No: CO/1608/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Honey KC, Merrow Golden and Jonathan Welch (instructed by Fortune Green Legal Practice) for the Claimant
Alexander Booth KC and Charles Streeten (instructed by Buckingham Council) for the Defendant
Hashi Mohamed (instructed by Dentons Solicitors) for the Interested Party
Hearing dates: 2–3 November 2022
Approved Judgment
INTRODUCTION
This is a challenge to the grant earlier this year of outline planning permission by the defendant, Buckinghamshire Council, for a residential development on a site abutting Maids Moreton in Buckinghamshire. Maids Moreton is a village which the 2011 census records as having 351 homes and 847 residents. The permission granted to the interested party, which I call “the developer” in this judgment, relates to “up to 170 dwellings, public open space and associated infrastructure.” Last year a planning inspector had reported on the Vale of Aylesbury local plan, and that had been adopted on 15 September 2021. Site allocation D-MMO006 concerns the site, which it allocates for “at least” 170 dwellings at a density that takes account of the adjacent settlement character and identity and the edge of countryside location.
The claimant is a resident and parish councillor of Maids Moreton and a member of the Maids Moreton and Foscote Action Group, formed in 2019. He has objected to the development since its inception in 2015. Over several years both he and the action group have raised a number of objections to the development both orally and in writing. In this judicial review the claimant raises six grounds of challenge. When granting permission on 1 July 2022, Lang J observed that these raised arguable grounds which merited consideration at a full hearing. Mr Honey KC (with the assistance of Ms Golden and Mr Welch) advanced the grounds with typical skill and thoroughness, but for the reasons explained in the judgment I have concluded that the claim cannot succeed.
BACKGROUND
Buckinghamshire Council (“the council”) become a unitary local authority and the planning authority for the county in April 2020. Until then these matters were considered by the former Aylesbury Vale District Council (“Aylesbury”), which became part of the new unitary authority. It was thus to Aylesbury that the developer applied for outline planning permission in 2015.
The 2015 screening opinion
Prior to the developer's application, Aylesbury had a screening opinion prepared under regulations 4–7 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”). That led to its decision on 19 November 2015 that this was not an EIA development, and no environmental impact assessment was required.
The screening opinion stated at the outset that its rationale was to determine “the likelihood of significant effects on the environment and whether an Environmental Impact Assessment (EIA) is necessary.” It then proceeded by examining the relevant criteria set out in schedule 3 of the 2011 Regulations.
In setting out the characteristics of the proposed development, the screening opinion stated (a) that its size was “7.95ha, up to 155 dwellings, public open space and play area, landscaping and flood mitigation.” As regards (b), cumulation with other development, it said that it related to an area of agricultural land and the proposal was not part of a larger scheme. Use of natural resources, (c), was stated as “greenfield site but none of substantive nature.” Pollution and nuisance, (e), noted that following occupation the development would result in additional vehicle movements, but it was unlikely that this would be of a substantive nature.
Among aspects of location, the screening opinion stated at (a) that existing land use was “agricultural, countryside”. Natural resources in area, (b) stated that the site “comprises open land in the countryside which would be lost as a result of the development, but any impacts would not be of more than local importance.” At (c), absorption capacity of natural environment, the opinion stated that the proposal was “not considered to raise substantive issues relating to identified criteria, but this would be assessed during the consideration of any subsequent planning application.”
As regards the characteristics of the potential impact, the screening opinion stated as regards its magnitude and complexity, (iii)(c) that it was “[u]nlikely to be substantive and would be localised impact, not anticipated to be complex.” As regards the probability of impact of the proposed development, (iii)(d), the screening opinion stated that it was unlikely to be substantive. It added: “Possible visual impacts and potential for impact on highways, ecology, flood risk, drainage and archaeology, but would be a localised impact and therefore probability of impact is not considered substantial.”
The conclusion and recommendation of the screening opinion were as follows: “It is considered in the light of available information that the proposal would not have a significant impact and as a result an EIA is not required.”
Highways
In a letter dated 30 November 2018 to Aylesbury, Buckinghamshire County Council, then the highways authority, explained that in light of the planning application it was more appropriate to investigate deterring traffic resulting from the development from using College Farm Road (also known as Mill Lane) rather than improving the junction of the road with the A422. That would be by traffic calming measures. If these were successful the result would be additional traffic from the development travelling into Buckingham, which would require mitigation through the Buckingham traffic strategy.
Agricultural land quality
The developer had a report prepared by consultants about agricultural land classification relating to the site. Dated February 2019 the report stated that the proposed development would take approximately 8 ha of land affecting four relatively small fields used mainly for arable farming. Its overall impact locally was of only minor significance in terms of agricultural land quality. The land was mostly grade 3a which was identified as being BMV (best and more versatile). The report concluded that its loss did not represent a significant loss locally or regionally in terms of BMV.
The report concluded:
“The loss of this site to development is therefore not significant to the supply of BMV agricultural land within the district and the Southeast as a whole with development on some BMV land in Aylesbury Vale being inevitable in most cases.”
Permission deferred and delegated for approval, 2019
The developer's application for planning permission was considered by Aylesbury's strategic development management committee in early 2019. It resolved that permission be deferred and delegated for approval subject to the completion of a section 106 agreement and the conditions which officers considered appropriate.
In response to a letter in March 2019 from Mrs Kate Pryke of the Maids Moreton and Foscote Action Group, on 2 May 2019 Aylesbury replied, inter alia, that it would not refer the matter back to the planning committee. Officers would only do that, it explained, if there was a significant change in policy or circumstances that would influence the decision made and the committee would need to consider it – and that was not the position.
Contaminated land
The developer had a consultant prepare a report on contaminated land. The council's pollution control officer prepared comments in relation to the subject dated 9 November 2020. The report recorded that the ground investigation had identified that elevated levels of arsenic were present across the entire site. The consultant's report had stated that these occurred naturally. The report went on to say that this was not considered a significant risk to human health and was in line with the current guidance. However, the report recommended that further assessment be undertaken. The pollution control officer agreed with this recommendation, adding that it might be that based on the results remedial work may be necessary.
Anglian Water report
In early November 2020 there was a report in relation to the proposed development by Anglian Water. As to wastewater, there was not the capacity in the Buckingham centre to deal with it, but Anglian Water was obligated to accept the foul flows from the development if it had the benefit of planning consent and would therefore take the necessary steps to ensure that there was sufficient treatment capacity should the council grant it.
As to the used water network and unacceptable risk of flooding downstream, Anglian Water stated that it would need to work with the developer to ensure any infrastructure improvements, but a full assessment could not be made at that point due to a lack of information.
Natural England
Natural England had no overall objection to the development when it responded on 2 November 2020. It considered that without appropriate mitigation the application would damage or destroy the interest features of the Foxcote Reservoir & Wood SSSI. To mitigate that Natural England advised an appropriate planning condition or that an obligation be attached to any planning permission to ensure implementation of the measures the developer's consultants had recommended in their 2016 ecological enhancement plan.
The 2020 officer's report
In November 2020 the...
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