R Susan Suliman v Bournemouth, Christchurch and Poole Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 19 May 2022 |
| Neutral Citation | [2022] EWHC 1196 (Admin) |
| Docket Number | Case No: CO/4256/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1196 (Admin)
Mrs Justice Lang DBE
Case No: CO/4256/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Fowles (instructed by Richard Buxton Solicitors) for the Claimant
James Neill (instructed by Head of Legal Services Bournemouth, Christchurch & Poole Council) for the Defendant
Douglas Edwards QC and Mark O'Brien O'Reilly (instructed by Foot Anstey LLP) for the Interested Party
Hearing date: 4 May 2022
Approved Judgment
The Claimant seeks judicial review of the decision of the Defendant (“the Council”), dated 4 November 2021, to grant full planning permission for a substantial mixed use development at Barrack Road, Christchurch, Bournemouth BH23 1PN (“the Site”).
The Claimant lives in an adjoining street and her property backs on to the Site. She objected to some aspects of the application for planning permission.
The Interested Party (“IP”) is the developer of the Site and the applicant for planning permission.
The Claimant's grounds of challenge may be summarised as follows:
i) The Council erred in law when officers advised the Planning Committee (“the Committee”) that it could not impose a condition requiring that the ecological corridor along the North West boundary of the Site should be “at least 12m in width”. The Council's error was to proceed on the basis that it had no power to impose such a condition.
ii) The Council acted in breach of the Claimant's legitimate expectation by failing to conduct a visit to her property to review the impact of the proposed development on the outlook towards the Site.
Permission to apply for judicial review was granted on the papers by Sir Duncan Ouseley, sitting as a Judge of the High Court, on 11 February 2022.
Factual background
The Site is currently occupied by the former Police Station and Magistrates Court, and the Goose and Timber public house. Those buildings are to be demolished, together with two houses in Barrack Road. Full planning permission has been granted for the erection at the Site of 130 residential dwellings, 39 units of age restricted sheltered accommodation, 612 sqm of flexible commercial/community space, a new road, new vehicular access, new private and semi-private gardens, public open space, hard and soft landscaping, surface vehicular parking and residential garages.
Most of the Site was identified in the Christchurch and East Dorset Local Plan – Part 1 Core Strategy (April 2014) as a Town Centre Strategic Site, and therefore the principle of development has been established.
Part of the land along the North West boundary of the Site was not included in the Strategic Site identified in the Local Plan. It was once part of the garden of a Victorian villa at 47 Barrack Road, and it now comprises mature trees, hedges and shrubs which provide a habitat for wildlife. Tree Preservation Orders are in place. It adjoins the rear gardens of properties on one side of Twynham Avenue (including the Claimant's house at no. 9 Twynham Avenue), and it provides an attractive outlook of trees and other greenery for residents of those houses. While the Site lies in a town centre area, the character of Twynham Avenue is “suburban” (Christchurch Character Assessment, 5.21).
The IP applied for planning permission for the development in 2018. Following consultation, the First Officer's Report (“OR1”), prepared by the planning officer Ms Mawdsley, was submitted to a meeting of the Committee on 20 February 2020. The Committee visited the Site. In line with the recommendations in OR1, the Committee made a provisional decision to grant permission, subject to conditions. Ms Mawdsley was not present at the meeting, and advice was provided by another planning officer, Mr Hodges.
The Claimant challenged the decision in a pre-action letter dated 27 April 2020. One of her grounds of challenge was that the Council had acted unlawfully in taking into account a “Biodiversity Mitigation and Enhancement Plan” (“BMEP”) which had not been certified by Dorset Council's Natural Environment Team (“NET”).
At that time, Policy ME1 of the Council's Local Plan required the Council to apply the Dorset Biodiversity Protocol where development was likely to impact on particular sites, habitats or species. Applicants were required to submit a BMEP for consideration by NET, which would grant a certificate of approval if the BMEP was found to be satisfactory.
The IP submitted an initial BMEP to the NET as part of its application in or around 2018. This contained a proposal for an “ecological corridor” running along the North West of the Site, broadly parallel to Twynham Avenue. The IP subsequently submitted a revised BMEP. However, neither version was approved by NET.
Following an exchange of correspondence, on 7 July 2020 the Council agreed to withdraw the decision made on 20 April 2020. It undertook to compile a new OR and re-make its decision at a further meeting of the Committee.
The Claimant submits that the Council subsequently withdrew from the Dorset Biodiversity Protocol so it was no longer under any obligation to seek a certificate of approval for the BMEP from NET. However, the planning officer explained the position rather differently in the Second Officer's Report (“OR2”):
“263. Since the Planning Committee in February 2020, there has been a change circumstances with regards to the Dorset Biodiversity Protocol and the Natural Environment Team at Dorset Council. BCP Council are not signed up to the Protocol and have not been since April 2019. The Protocol originally related to Dorset County Council and the District Authorities. The two Unitary Authorities were not signed up and used their own professional Biodiversity Officers. Therefore, with the formation of BCP Council. This Protocol is no longer necessary. However, until recently NET were still providing guidance and would provide Certificates of Approval for Biodiversity and Mitigation Enhancement Plans that were submitted to them by applicants. This service no longer exists and as such BCP Biodiversity Officers will use their expertise to provide responses on biodiversity issues. In this particular case, the BCP Biodiversity Project Officer has assessed the scheme in relation to biodiversity issues and is fully aware of all the consultation responses and representations received regarding this matter.”
However, the Council remained subject to other biodiversity requirements, as follows:
i) The Council's statutory duty to have regard to conserving biodiversity, including “restoring or enhancing a population or habitats” under section 40 of the Natural Environment and Rural Communities Act 2006 (“NERC 2006”), in particular, the requirement to have regard to habitats and living organisms listed by the Secretary of State under section 41 which are of “particular importance for conserving diversity”. These include stag beetles which are present on the Site.
ii) A policy requirement under Policy ME1 of the Local Plan to avoid “harm to priority habitats and species” and to aim to achieve a “net gain” in biodiversity.
iii) The Site lies within the Urban Greening Zone in the Core Strategy, Map 13.4.
iv) The South East Dorset Green Infrastructure Strategy encourages, inter alia, green space, wildlife habitats, and “habitat stepping stones”.
The Claimant requested Committee Members to undertake a site visit to her property at 9 Twynham Avenue before re-making its decision, to see the potential impact of the proposed development on the outlook from the houses in Twynham Avenue. Committee Members did undertake a further site visit on 25 November 2020, but did not visit 9 Twynham Avenue. According to Mr Henderson, a Director of Savills who were acting for the IP, who attended the site visit, Committee Members viewed the area adjoining the boundary with the gardens of the houses in Twynham Avenue. The IP marked out the position of the proposed units in that area on the ground with spray paint to further assist Members' appreciation of their distance from the boundary. On an earlier occasion, Ms Mawdsley visited the Claimant's house and took photographs of the outlook, which were included in her presentation to Committee Members at their meeting. I will refer in more detail to the site visit and the communications between the parties when considering Ground 2.
OR2, which was also prepared by Ms Mawdsley, was submitted to the Committee at its meeting, held remotely, on 26 November 2020.
OR2 included a comprehensive account of the consultation responses received on the issue of the ecological corridor.
NET's consultation response, in February 2020, was that “the area does provide an island/stepping stone in the urban landscape and as such is an important ecological feature” and the proposed corridor was too narrow to mitigate “the loss of on-site habitat and its long-term ecological function”. The NET recommended that the ecological corridor be expanded.
Following its earlier objections, the Dorset Wildlife Trust (“the Wildlife Trust”) commented on 20 October 2020 (as summarised in OR2):
“55. The revised Landscape Plan (dated 5th Feb 2020) illustrates the proposed wildlife area as referenced by the submitted BMEP under sub-section 4.3.1.
DWT note the wildlife area has been extended along the northwestern boundary as per our previous comment. However, no indication of the width of this area is provided in either document, only that the area measures 696m 2 in size (or c ha) in the submitted BMEP. Using the scale provided on the Landscape Plan, it appears that the wildlife area is 10m wide in places but appears much narrower...
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