R SPVRG Ltd v Pembrokeshire County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn: |
| Judgment Date | 26 January 2022 |
| Neutral Citation | [2022] EWHC 143 (Admin) |
| Docket Number | Case No: CO/648/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 143 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT FOR WALES
Cardiff Civil Justice Centre
2 Park St, Cardiff, CF10 1ET
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/648/2021
and
Emyr Jones (instructed by Lewis Lewis & Co LTD) for the Claimant
James Findlay QC and Ruchi Parekh (instructed by Pembrokeshire County Council) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 11 October 2021
Approved Judgment
A. Introduction
This judicial review claim is a challenge to the decision of Pembrokeshire County Council (“the Council”) to grant the interested party's application (19/1340/PA) for planning permission under section 73 of the Town and Country Planning Act 1990 (“the 1990 Act”) in relation to an established caravan park at Heritage Park, Pleasant Valley, Narbeth. When the claim was issued the challenge was to the resolution to approve the application made by the Council's planning committee on 9 February 2021. Subsequently, on 27 May 2021, the decision notice granting the permission (“the 2021 Permission”) was issued and that is the ultimate target of this claim.
The 2021 Permission varies conditions 2 and 7 of a planning permission granted on 14 March 2016 (“the 2016 Permission”). The 2016 Permission was itself granted under s.73 of the 1990 Act, varying two conditions of a permission granted on 14 July 1983.
The caravan park known as Heritage Park is situated in Pleasant Valley, Stepaside. A Scheduled Ancient Monument (SAM) (Stepaside Ironworks) and associated listed buildings are situated within or adjacent to the site. The claimant is a company incorporated by the Stepaside and Pleasant Valley Residents Group who were originally formed to oppose another planning application made by the interested party in 2019.
The claimant's application for permission to bring these proceedings advanced 18 grounds of challenge in respect of three decisions of the Council relating to Heritage Park. On 22 June 2021, I granted permission to pursue seven grounds in respect of the 2021 Permission only, namely: the second limb of Ground 11 and Grounds 12–17 (as they appear in the claimant's amended statement of facts and grounds). I refused the claimant's application for an extension of time, and permission, to challenge the grant of the 2016 Permission and to challenge a decision made on 2 June 2020 to discharge a number of the conditions relating to the 2016 permission.
The seven grounds on which the decision to grant the 2021 permission (“the Decision”) is challenged, which overlap, are:
i) The Decision was taken in ignorance of relevant considerations, namely, the 1987 Permission and the s.52 Agreement (“ Ground 1”, formerly the last sentence of ground 11);
ii) The Council failed to deal rationally with the visual amenity impact of variation of condition 2 (“ Ground 2”, formerly ground 12);
iii) The Council failed to properly understand or apply policy GN19 of the local development plan (“ Ground 3”, formerly ground 13);
iv) The Council failed to consider (lawfully or at all) a relevant consideration, namely, the flood risk (“ Ground 4”, formerly ground 14);
v) The Council's conclusion that the application complied with the development plan was flawed and irrational (“ Ground 5”, formerly ground 15);
vi) The Council failed to assess the fallback position properly (“ Ground 6”, formerly ground 16); and
vii) The Council failed to apply s.38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to condition 7 (“ Ground 7”, formerly ground 17).
B. The facts
Mr Alec Cormack has given three witness statements on behalf of the claimant. He refers to himself as a “ relative newcomer to Pleasant Valley”, but he has been a Director of SPVRG Ltd since it was incorporated on 15 September 2020; and he describes having spent many hundreds of hours, along with his wife, on the task of coordinating and collating the research done by the claimant's supporters. His evidence is very largely based on the documents.
The Council's Chief Planning Officer, Mr David Popplewell, has also given three witness statements in these proceedings, including a statement confirming that the conclusions set out in the detailed grounds of defence on the questions of implementation of the 1987 Permission and the application and/or enforcement of the s.52 Agreement properly accord with and reflect his professional view, having undertaken a full and detailed review of all the documentation of which he is aware which appears to be relevant to the Heritage Park development.
The history of development at Heritage Park is long and rather complicated. Although the challenge is limited to the 2021 Permission, it is necessary to give some historical context to address the claim fairly.
The 1983 Permission
The Council's evidence is that, on 16 June 1971, planning permission was granted for static and touring caravans in respect of what is now known as Heritage Park. I have not seen that permission, but it is immaterial. The permission was varied on 28 January 1982 which limited the holiday caravans to 95 static caravans and 55 touring caravans (“the 1982 Permission”).
On 14 July 1983, planning permission was granted to vary the condition in respect of layout in the 1982 Permission, and it was similarly restricted to the provision of 95 static caravans and 55 touring caravans (“the 1983 Permission”).
The 1987 Permission and s.52 Agreement
On 3 March 1987, planning permission was granted by Dyfed County Council for the change of use of the site to a heritage project – the ‘Stepaside Industrial Heritage Project at Stepaside’ — (“the 1987 Permission”), subject to a s.52 Town and Country Planning Act 1971 agreement (“the s.52 Agreement”). The 1987 Permission states:
“…the County Council as local planning authority HEREBY PERMITS:-
Stepaside Industrial Heritage Project at Stepaside
in accordance with the application and plans submitted by you on 7 th May, 1986 to the Council, subject to the development being begun on a date which is not later than 5 years from the date of this permission and subject also to the following conditions:-
…
2. The permission now granted is for the change of use of land only and details of new buildings, alterations and other operations will be subject to separate planning applications, including listed building consent, to the local planning authority.
…”
The parties to the s.52 agreement were Saundersvale Holiday Estates Limited (the owner of the caravan park), Dyfed County Council (the local planning authority) and South Pembrokeshire District Council (which was involved in promoting the heritage project). The s.52 agreement required the relocation of caravans from the northern part of the site to the southern part and extinguished the use of the northern part as a caravan site 12 months following the commencement of works; and it permitted the northern part of the site to be used only as a car park and for no other form of development without prior written approval.
The preamble to the s.52 Agreement states at (2):
“The Company are the owners in fee simple in possession free from incumbrances of the said property and have by a written application dated 1 st May 1986 applied to the County Council for full planning permission to undertake works on the said property in furtherance of the proposed Stepaside Heritage Project incorporating inter alia the resiting of caravans in the manner and for the uses set out in the plans specifications and particulars deposited with the County Council and set out in the Second Schedule hereto”. (Emphasis added.)
Clause 3 of the s.52 Agreement states:
“The Company hereby covenants with the County Council:-
(i) that the caravans and tents currently situated on that part of the said property and shown edged ORANGE on the said Plan No.1 shall be relocated on that part of the said property shown edged BLUE within a period of 12 months from the date of the commencement of any works on site and that the use of the parcel shown edged ORANGE as a caravan and camping site shall be consequently discontinued and extinguished; and
(ii) that the parcel of land shown edged ORANGE shall be used only as a car park for the purposes of the Stepaside Industrial Heritage Project and for no other form of development whatsoever without the prior written approval of the County Council.
…
(iv) that no building or other operations or change of use in connection with the planning permission hereby granted other than those required in Clause 3(ii) shall be undertaken, either on the application site or on other adjoining land under their control before a) the necessary facilities for disposal of sewage and b) the highway improvement works as specified in the Third Schedule and shown on Plan No.3 attached thereto have been completed to the satisfaction of the County Council.” (Emphasis added.)
The Second Schedule to the s.52 Agreement provides:
“Application dated 1 st May 1986 (Reference No.C3/104) for detailed planning permission for development works in furtherance of the Stepaside Industrial Heritage Project incorporating inter alia the resiting of the caravans and tents currently sited on the parcel of land edged orange to the parcel of land edged blue on the said Plan No.1.”
It is common ground that the highway works referred to in Clause 3(iv) were undertaken, but the sewage works were not.
There is a dispute between the parties as to whether the 1987 Permission was implemented, which is the subject of ground 1. In short, the Council's position is that it has not been (and as a consequence the...
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