R Warley v Wealden District Council
| Jurisdiction | England & Wales |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWHC 2083 (Admin) |
| Docket Number | CO/11315/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 July 2011 |
[2011] EWHC 2083 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Rabinder Singh QC
(Sitting as a Deputy High Court Judge)
CO/11315/2010
Mr J Pereira (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Claimant
Mr M Reed (instructed by Sharpe Pritchard) appeared on behalf of the Defendant
Introduction
THE DEPUTY JUDGE: This is a claim for judicial review of the grant of planning permission on 11 August 2010. The claimant is a local resident, the defendant is the relevant local planning authority, and the interested party is the beneficiary of the planning permission, namely Wadhurst Tennis Club. The interested party has not taken any active part in the hearing before me, although I have received a letter on its behalf dated 15 June 2011, which I have taken into account.
Permission to bring this claim for judicial review was granted by Lindblom J on 14 February 2011. He granted permission to advance two of the four grounds which were pleaded. The claimant has not sought to pursue the two grounds on which permission was refused. The grounds on which permission was granted were then numbered 1 and 4. For ease of reference I will call them the environmental impact assessment, or EIA, issue and the conditions issue.
It has become common ground before me that the first part of what was previously ground 4, namely the conditions issue, is not necessary to pursue at least at this stage. This is the result of a concession made by the defendant at paragraph 27 of the detailed grounds of resistance.
Factual background
The site which is the subject of the present case lies within an area of outstanding natural beauty (AONB). Before the relevant time there were already there some tennis courts and other recreational facilities. In 2008, an application was made for the erection of nine static columns with floodlighting. I can take the relevant facts from the first witness statement of Mr Douglas Moss who has filed evidence on behalf of the defendant in this case.
At paragraph 6 of his witness statement, Mr Moss says that the planning application which was granted planning permission by the council was submitted in 2008:
"…For the 'erection of nine static columns with attached floodlights alongside Court numbers 1 and 2 only' at Wadhurst Tennis Club Sparrows Green Recreation Ground, South View Road, Sparrows Green, Wadhurst. It was reported to the meeting of the Council Planning Sub-Committee North on 29 May 2008…which resolved to grant full planning permission following receipt of an officer's report and an update recommending that planning permission be refused."
At paragraph 10 of the same witness statement, Mr Moss states:
"When I considered the status of the development proposed by the planning application in 2008 I had regard to the fact that the application site was within Sparrows Green recreation ground, owned by Wadhurst Parish Council with the tennis courts and changing rooms building let to the Wadhurst Tennis Club and the planning history of the site showed that outline planning permission was given in 1997 for the replacement of existing changing rooms and public toilets with a new pavilion incorporating new changing rooms, canteen for soft refreshments during and after matches, provision of 4 tennis courts, cycle track, adventure playground, new vehicular access and associated car and disabled parking in the recreation land. Reserved matters approval for this development was issued on 6 October 1999."
The planning permission which was granted on 29 May 2008 was subsequently quashed by consent by this court on 12 August 2009 for reasons which are not material for present purposes. As a result, the application had to be considered again in 2010. But some of the events which occurred in 2008 are still important because they remain relevant, as will become apparent in a moment.
There are no contemporaneous documents available on the EIA issue. The question of disclosure of such contemporaneous documents was expressly raised in the letter before claim before these proceedings were issued, and the defendant authority's response was to the effect that no such documents existed.
Accordingly, it has been important in this case for the court to have evidence before it in the form of witness statements setting out the reasons for the stance which the defendant took on the EIA issue. I can most conveniently set out that stance by reciting in full the relevant passages in the first witness statement of Mr Moss, which are at paragraphs 11 to 14:
"11. The proposal in 2008 was for the erection of nine columns with floodlights. Although it was immediately clear that the impact of floodlighting on the area of outstanding natural beauty in which it was located and on the residential amenity were going to be a significant material planning considerations [sic], I took the view that the development did not fall within either schedule 1 or schedule 2 to the EIA regulations 1999 [I will return to those regulations in due course].
"12. It has been suggested by the Claimants…that the development should have been regarded as falling under either paragraph 10(b) (urban development projects) or paragraph 13 (Any change to existing category development) of Schedule 2. I would confirm that I considered the application when it was submitted in 2008 that I considered that neither the application proposals, nor the existing courts, fell within those categories.
"13. My reasoning for this conclusion was that by reference to the list of developments within Schedule 1 of the 1999 Regulations, it is very clear that minor works are excluded from the major projects listed. [I interpose to say that it is common ground before me that there is no issue as to the applicability of Schedule 1]. Turning to the issues regarding Schedule 2 alleged by the Claimant, I formed the view that the lighting column project could not be considered under paragraph 10(b), urban development projects, which includes the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas. In my opinion at the time, I could not identify any reasonable comparison between the nature of a simple lighting column proposal before me with the far more substantive physical forms of urban development which are clearly embraced within 10(b). I was aware of the lighting impact issue, but was not of the opinion that this characteristic meant such minor development would fall within class 10(b). The fact that thresholds on the size of listed categories of development are not applicable within sensitive areas (like the AONB) was known to me, but where development does not fall within the schedule, I considered it would not require screening for an EIA.
"14. I now consider the allegation that the development should otherwise be considered as Schedule 2 paragraph (13) development, that is, a change to an existing category of development already listed in Schedule 1 or 2. I consciously took one step back to consider the existing permitted use/development of the site (before the floodlight application). Noting that this was already recreational ground when the hard surfaced courts were formed, I was convinced in my view that the tennis courts on the land were not an 'urban development project'. They simply did not square with the category 'character' and limitations. It is also relevant to note that recreational development of land has its own heading in Schedule 2 and could have been included in paragraph 12 (Tourism and leisure) if relevant. As a result of the above, it is clearly, therefore, outside the category of an 'urban development project'. For the avoidance of doubt, I am also clear in my view that these established tennis courts do not fall within Schedule 2 paragraph (12) development either, as there is no relevant entry within the list of leisure developments."
I should go at this juncture to two other witness statements filed by Mr Moss in these proceedings. The first is his third witness statement. Towards the end of what is paragraph 6 of that witness statement, Mr Moss states:
"As stated in my first witness statement, I considered that the proposal for lighting the two tennis courts did not fall within either Schedule 1 or Schedule 2 to the EIA Regulations 1999. My assessment at that stage was reached on the basis of the 15 column scheme which were in a similar location to the subsequent 9 column scheme ie around the perimeter of the two existing tennis courts."
And paragraph 7, he goes on to say:
"The differences between a scheme for 15 or 9 columns are minor as the purpose of both schemes is to create the same defined illuminated area or box of light over the two tennis courts giving adequate illumination in which to play tennis."
During the course of paragraph 9 of his statement, he states:
"I took the view that, when the amended 9 column scheme was submitted, that as with the 15 column scheme it also fell outside the scope of Schedule 1 or 2 of the EIA Regulations."
He ends that paragraph by expressing the view that the 9 column scheme was "marginally better" than the 15 column scheme, in that there would be less clutter in daylight by having fewer columns.
It has not been suggested before me that the difference between the original 15 columns envisaged and the amended application in 2008 to include nine columns, as in 2010, is material to any of the issues in...
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