R Paul Rogers v Wycombe District Council Jonathan Smare (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 December 2017 |
| Neutral Citation | [2017] EWHC 3317 (Admin) |
| Docket Number | Case No: CO/6141/2016 & CO/2411/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 December 2017 |
[2017] EWHC 3317 (Admin)
Mrs Justice Lang DBE
Case No: CO/6141/2016 & CO/2411/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Parkinson (instructed by Richard Buxton) for the Claimant
Daniel Stedman Jones (instructed by Wycombe District Council) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 14 November 2017
In claim CO/6141/2016 ("JR1"), the Claimant applied for judicial review of the grant of planning permission by Wycombe District Council ("the Council"), on 24 October 2016, for a development at Sheron, Spurgrove Lane, Frieth, Buckinghamshire, RG9 6PB ("the Site") comprising "subdivision of the existing plot and erection of 1 x 4 bed detached dwelling with associated double garage, retaining wall and oil tank together with a new access & entry gates".
Permission to apply for judicial review was granted in respect of some grounds only by Timothy Straker QC, sitting as a Deputy Judge of the High Court, on 7 February 2017.
In claim CO/2411/2017 ("JR2"), the Claimant applied for judicial review of the Council's decision, on 31 March 2017, to grant a deed of release from an agreement entered into under section 52 of the Town and Country Planning Act 1971 ("TCPA 1971"), which restricted development on the Site ("the Agreement"). Permission was refused on the papers by Robin Purchas QC, sitting as a Deputy Judge of the High Court, on 14 July 2017. The renewed application for permission was heard at the same time as JR1, as a rolled-up hearing.
The Claimant objected to the application for planning permission. He lived in Spurgrove, close to the proposed development, and he was concerned that the development would adversely affect the outlook from his house and, more importantly, the rural character and openness of Spurgrove.
The Interested Party was the owner of the Site, and the applications for planning permission and for the discharge of the Agreement were made on his behalf.
Facts
The Site comprised a detached dwelling house, garage and outbuildings known as 'Sheron', situated within a large plot.
Spurgrove was an area of residential development in the village of Frieth, but separated from the main part of the village by fields. Sheron, and the other dwellings nearby, were detached houses in large plots, accessed from an unnamed road running off Spurgrove Lane. The Highways Management Officer from the highways authority described it as "located off a section of Spurgrove Lane which is not maintained by Buckinghamshire County Council" (consultation response, 18 October 2016). The plots were surrounded by fields and woodland, with views over the valley. Further up along the same road, there were houses situated in smaller plots and more tightly grouped.
The Site was within the Chilterns Area of Outstanding Natural Beauty ("AONB") in an area designated as "Open Countryside beyond the Green Belt" in the Adopted Wycombe District Local Plan to 2011, as saved and extended in 2007 and replaced by the Adopted Core Strategy July 2008, and Delivery and Site Allocations Plan July 2013. Policy C10 provided:
" POLICY C10
(1) Within that portion of the countryside beyond the green belt, and subject to other appropriate policies of this local plan, planning permission will only be given for:
(a) development reasonably necessary for the purposes of agriculture and forestry;
(b) development for outdoor sport and countryside recreation and for buildings which are essential to support those uses, as set out in Policy RT5;
(c) limited affordable housing for local community needs in accordance with Policy H14;
(d) local community facilities which cannot be provided elsewhere;
(e) infilling within villages, hamlets and identifiable ribbons of development where there are no adverse effects on the character of the area. The closing of gaps or enclosure of open areas which contribute to the open character of the area will not be permitted;
(f) development wholly appropriate to a rural area which cannot be located within a settlement; and
(g) development consistent with the appropriate policies of this chapter.
(2) All development must be of an appropriate design and scale for its location, and contribute to a sense of local identity by respecting or enhancing the existing character of the area, in accordance with the principles set out in Policy G3."
The Site and three neighbouring properties were subject to an Agreement made under section 52 TCPA 1971 with the Council on 25 April 1978. By that Agreement, the then owner of the Site and the owners of neighbouring properties covenanted "that no additional residential development shall be carried out on the development land or on the said property in the attached plan". The covenant was binding upon their successors in title.
In 1997, the owner of one of the plots (Medina) asked to be released from the Agreement. The Council refused the application, observing that further dwellings would damage further the special character of the area and undermine planning policies. The Agreement was, however, varied so as to enable development that did not amount to the erection of an additional dwelling.
On 1 August 2016, following some pre-application discussions with the Council's planning officer, the Interested Party applied for planning permission to sub-divide his plot in two, and to erect a new four bedroomed detached house and garage, which would have its own access and entrance gate.
The Claimant and others objected to the application, on the grounds inter alia that the open, rural character of this area of the countryside would be harmed by introducing a large building into an undeveloped open space and it would create an unfortunate precedent. Their objections included reference to the fact that the application was contrary to the terms of the Agreement, and also inconsistent with previous appeal decisions in Spurgrove.
The Parish Council's comments on the application were as follows:
"No objection if it is classed as a separation of property and infill build rather than a development in open countryside. However, we have been made aware of covenants put on this land by Wycombe District Council which state no new buildings, if this is still valid it would preclude any new development and we would object."
On 31 August 2016, Councillor Whitehead (who was Councillor for the Ward) stated that "the application is causing some concern locally so would ask for it to be discussed by the Planning Committee should the officers be minded to approve it".
The planning officer completed her report into the application on 18 October 2016 and recommended the grant of planning permission.
On 21 October 2016, Councillor Whitehead withdrew his request to have the application determined by the Planning Committee, saying "I have spoken to the Parish Council, and they are happy for this application to be decided by the officers – so no need to refer to the Committee."
The officer's recommendation was approved by Mr Martin, Development Management Team Leader, on 24 October 2016, and the decision notice granting planning permission was issued on that date.
Mr Robson, who lived in the neighbouring property to Sheron, made enquiries about the decision-making process. On 29 October 2016, Councillor Whitehead replied to Mr Robson saying:
"On all planning applications I am guided by the Parish Council – especially in parts of my ward that I am not too familiar with. They are more familiar than I with the detail of the application, and without their support any objection that I might make in Committee would be hollow. In this instance, the Parish Council, having initially asked for this to be considered by the Planning Committee, subsequently changed their mind, and advised me that they were happy for the planning officers to decide the application. The reasons for permitting the application are given in the officer's report."
On 31 October 2016, the clerk to the Parish Council set out in an email to Mr Robson, her discussions with the Planning Officer regarding the Agreement, stating "With regards to [the Agreement], she knows very little about it and it does not show on her mapping, but that it is not a planning issue…".
On 3 November 2016, the clerk to the Parish Council sent another email to Mr Robson stating:
"….. Councillor Whitehead approached the Parish Council after WDC documents on the preliminary decision were released, asking if the PC still wished the matter to be taken to Committee. Upon reading the documents, the PC decided not to proceed taking it to Committee. The main reasons for the original request to take it to the Committee were the Covenant on the land, and the "open countryside" development not being permitted. The documents showed that the Covenant is not a planning matter to be taken into consideration, but a private matter so that was not a valid argument for this purpose. After speaking with WDC Planning, being told that limited infill development is permitted in open countryside and that's what this application is, that voided that also. To take an application to the Committee the PC need to be sure that the reasons for opposing the application are valid for planning purposes or else it is not looked upon favourably. When these 2 complaints (as the consultee comment I submitted to WDC in September stated) were answered if you will be Planning, there was no further reason to take it to the Committee. At the time of the PC meeting you attended, it was the intention to take it to Committee, but after the objections were addressed by WDC...
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