R (Steven Hewitt) (Acting on Behalf of Save Our Valleys Group) v Oldham Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 18 December 2020 |
| Neutral Citation | [2020] EWHC 3405 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/149/2020 |
| Date | 18 December 2020 |
[2020] EWHC 3405 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
As at Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
Mr Justice Julian Knowles
Case No: CO/149/2020
and
Philippa Jackson (instructed by Irwin Mitchell LLP) for the Claimant
Alan Evans (instructed by Group Solicitor (Environment) Oldham MBC) for the Defendant
Sasha White QC and Anjoli Foster (instructed by Gateley Legal) for the Interested Party
Hearing date: 28 July 2020
Approved Judgment
The Honourable
Introduction
In this application for judicial review Steven Hewitt, the Claimant, acts on behalf of an unincorporated association called Save Our Valleys. He challenges the decision of Oldham Metropolitan Borough Council (the Council) dated 5 December 2019 to grant hybrid planning permission for a housing development and other works by Russell Homes (UK) Limited (the Interested Party).
The grant of permission comprises:
a. outline planning permission for the development of up to 265 dwellings, open space and landscaping, with all matters reserved except for access, at Knowls Lane, Oldham; and
b. full planning permission for the development of a new link road between Knowls Lane and Ashbrook Road and associated works.
The grant was made pursuant to planning application PA/343269/19. This was registered on 26 April 2019. In 2018 the Council rejected a virtually identical application.
I will refer to the area to be developed as ‘the Site’.
The Claimant is the councillor for the Council's Saddleworth West and Lees ward, where the Site is situated. He is a former Vice Chairman of the Council's Planning Committee (the Committee). He is the Chairman of Save Our Valleys. This group was formed in 2017 by local people to campaign against the Interested Party's development proposals. They believe that the development will destroy the unspoilt natural environment of Thornley Brook Valley and Ashbrook Valley (areas within the Site) and cause other harm to the Site and its environs.
The Interested Party is a well-known housebuilder which has acquired the necessary interests in the Site over the past six years.
The grant of permission followed a recommendation in favour of the development by the Council's Officers in their 2019 Report, and a Committee resolution in favour passed on 1 July 2019. Permission was dependent on the completion of an agreement under s 106 of the Town and Country Planning Act 1990 in relation to other requirements, and other conditions. I am not concerned with these latter matters.
Terms and abbreviations
In this judgment I will use the following terms and abbreviations:
The Site
| 2018 Report | The Council's Planning Officers' Report to the Committee in 2018 |
| 2019 Report | The Officers' Report to the Committee in 2019 |
| Assessment | The Landscape Character Assessment carried out on behalf of the Council in 2009 |
| DPD | Oldham Development Plan Document – Joint Core Strategy and Development Management Policies 2011. This largely replaced the UDP |
| HLS/5YHLS | Housing Land Supply/Five Year Housing Land Supply |
| LCA | Landscape Character Area. Seven such Areas were identified and described in the Assessment |
| LPA | Local Planning Authority |
| NPPF | National Planning Policy Framework |
| OPOL | Other Protected Open Land |
| OPOL 12 | The eastern part of the Site (Thornley Brook East), which was identified as OPOL by Policy OE1.10 on the Proposals Map of the UDP |
| PLBCAA | |
| PCPA | |
| SFG | Statement of Facts and Grounds |
| TCPA | |
| UDP | Oldham Unitary Development Plan 2006 |
The Site is approximately 15.79ha in size and comprises vacant open grassland, with the wooded valley of Thornley Brook to the north. It is comprised of an irregularly shaped area of land on the south eastern edge of Lees that is enclosed by existing development to the north, east and west, with highways infrastructure (Knowls Lane and Thornley Lane) to the south. It is located approximately 2.95km east of the centre of Oldham. Junction 22 of the M60 is approximately 5.35km to the south west of the Site.
The Site itself has no buildings on it. There is pedestrian access to the Site but no formal vehicle access, although such access can be achieved via gates at Manor Farm and from Thornley Lane. Several public rights of way cross through or run close to the Site.
St Agnes' Church of England Primary School and its playing field and St Agnes' Church and grounds are located along the north of Knowls Lane/Thornley Lane, to the south of the Site. The Grade II listed buildings of Knowls Lane Farm, Knowls Lane Farmhouse, Manor House (and attached cottage) and Flash Cottage are located west to east respectively along Knowls Lane/Thornley Lane.
The Site is not located within, or adjacent to, a conservation area (although, as I will discuss later, the Lydgate Conversation Area is between 1km and 1.5km away) and contains no listed buildings or other designated heritage assets. It does not form part of any statutory or non-statutory, ecological or wildlife designated area. The Site lies adjacent to the Spade Mill Biological Heritage Site. It does not lie in any area of nationally or locally protected landscape.
On 9 November 2011 the Council adopted the DPD. This superseded the majority of the Council's UDP 2006 policies. However, a number of UDP policies were ‘saved’ by direction of the Secretary of State in May 2009 under the relevant legislation.
The western part of the Site is identified on the proposals map of the UDP as a Phase II housing allocation capable of accommodating up to 232 new homes (Saved UDP Policy H1.2.10). The proposed link road was identified in UDP Policy H1.2.10 as a requirement if this housing allocation were to be brought forward. The land for the link road is safeguarded under Policy 17(g) of the DPD.
The eastern part of the Site (ie, OPOL 12) was originally identified and protected as OPOL in UDP OE1.10 (where it is referred to as Thornley Brook East, Lees) on the UDP's Proposals Map. UDP Policy OE1.10 has since been replaced by Policy 22 of the DPD.
Paragraph 6.142 of the DPD states:
“6.142 OPOL is open land which, while not serving the purposes of the Green Belt, is locally important because it helps preserve the distinctiveness of an area. As well as providing attractive settings, they provide other benefits, such as informal recreation and habitats for biodiversity, therefore helping to provide sustainable communities and help mitigate climate change. The main aim is to protect OPOL from development, however there may be instances where limited small scale or ancillary development will be permitted, such as visitor facilities or development that is ancillary to existing uses. This allows limited small scale development over and above that permitted in the Green Belt. The council will consider the visual impact that development has on the openness and distinctiveness of the OPOL, taking into account the cumulative impact.”
This definition was echoed in [7.8] of the 2019 Report.
Policy 22 provides in relation to OPOL:
“The majority of the borough's open land is designated Green Belt. The main purpose of the Green Belt is to keep land permanently open. Pressure for development in the Green Belt is generally small-scale developments such as the re-use of agricultural buildings. The borough also has locally protected open countryside called ‘Other Protected Open Land’ (OPOL) which aims to preserve the distinctiveness of an area …
….
Development on OPOL will be permitted where it is appropriate, small-scale or ancillary development located close to existing buildings within the OPOL, which does not affect the openness, local distinctiveness or visual amenity of the OPOL, taking into account its cumulative impact. Where appropriate, development will be screened or landscaped to minimise its visual impact.
…
The council will assess OPOL in the Site Allocations DPD. The council will provide further advice and guidance on this policy.”
Following the UDP Examination in 2011, the Inspector described the eastern part of the Site (quoted in the 2019 Report at [7.9]) as:
“… a substantial area of attractive open land which has much in common with the open countryside to the south. It serves to separate the extensive suburbanised area of Grotton to the east and the existing and proposed housing area to the west.”
The Report went on at [7.10] to record the Inspector's view that if the housing site on the western side of the Site was to be developed, it was ‘imperative’ that the eastern part of the Site remained open.
The 2018 planning application
As I have said, the application for which permission was given in 2019 was a resubmission of a materially identical application in 2018 (PA/340887/17). This application was refused by the Committee on 7 December 2018, contrary to the recommendation of the Council's Planning Officers in their 2018 Report.
In both 2018 and 2019 Officers advised that the Site was considered to be a ‘valued landscape’ for the purposes of [170(a)] of the NPPF. Paragraph [170(a)] requires planning decisions to contribute to and enhance the natural environment by protecting and enhancing valued landscapes:
“Planning policies and decisions should contribute to and enhance the natural and local environment by:
(a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner...
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