Rory Walsh v Horsham District Council

Hearing date: 8 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 21 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Claimant seeks judicial review of the decision of the Defendant (“the Council”), dated 31 February 2024, to grant planning permission to the Interested Party (“IP”) for the conversion of its existing grass football pitch to an artificial 3G surface, with new perimeter paths, fencing, floodlighting and goal storage area, at Horsham YMCA Football Club, Gorings Mead, Horsham, West Sussex (“the Site”).

The Claimant lives near the Site and will be directly affected by the proposed development. He has made representations to the Council opposing the grant of permission.

The main issue in this claim is the deterioration and loss of a veteran ash tree as a result of the proposed development. The Council's Planning Committee North (“the Committee”) resolved to grant planning permission contrary to the planning officers' recommendation that the IP had failed to demonstrate “wholly exceptional reasons” for the “loss or deterioration” of a veteran tree, as required by the National Planning Policy Framework (December 2023) (“the Framework”), at 186(c) 1.

On 3 May 2024, I granted the Claimant permission to apply for judicial review on three grounds, namely:

i) The Council failed to give legally adequate reasons for its finding that the test in the Framework, at 186(c), was met.

ii) The conditions attached to the permission failed to secure one or more measures which the Council considered to be necessary.

iii) The Council's decision to grant the permission was irrational.

Following the grant of permission, the Council filed evidence with its Detailed Grounds of Resistance stating that the Council had entered into an agreement, pursuant to section 106 of the Town and Country Planning Act 1990 (“TCPA 1990”), on 20 May 2024. It imposes additional obligations on the IP in order to address the concerns which the Claimant had raised about deficiencies in the conditions attached to the permission, in Ground 2 of the claim. Although the section 106 TCPA 1990 agreement does not provide equivalent protection to planning conditions, the Claimant accepts that it is sufficient to render Ground 2 academic. Therefore Ground 2 is no longer pursued.

Planning history

The Site, which is approximately 3.5 acres in size, has been used for football since 1929. Existing facilities include a covered seated stand, a ground capacity for 1,575 people, a club house and changing facilities.

The site is bounded by mature trees across the south, west, and partially the northern, boundaries of the Site. There are four trees (T3 and T4 oak trees and T5 and T6 ash trees) on the southwestern boundary that are subject to a Tree Preservation Order.

The original planning statement submitted by the IP acknowledged that T10 was a veteran tree and that the proposed development would lead to its loss by virtue of works in its Root Protection Area, in order to create a retaining structure.

Subsequently, the IP submitted an addendum planning statement with a revised proposal that T10 should be retained, but heavily reduced in size, leaving a manageable core which could potentially have some ecological benefit to the locality. As part of a compensatory strategy, the IP proposed to plant 12 trees in an alternative location at the Site.

In the Officers' Report for the Committee meeting on 3 October 2023 (“OR1”), the planning officers summarised the consultation responses received. The impact on T10 led to objections from the Council's landscape architect, ecology officer and arboricultural officer.

In his initial response, dated 19 January 2023, the arboricultural officer advised that T10 was structurally sound and free from disease. He considered that the 12 new trees proposed would be insufficient to mitigate the loss of T10, as it would take many decades for them to reach a similar stature and level of ecological benefit as T10. In his comments on the revised proposal, dated 20 September 2023, he said as follows:

“The proposed assisted decline option for T10 the Veteran Ash refers to the above-ground feature of the tree, where it is proposed that the tree would be heavily reduced in size with a bulk of the main stem being retained as a monolith. This assessment hasn't considered the level of root severance required to build the new pitch as proposed; due to the tree's location in regards to the existing pitch, a high percentage of the tree's key rooting area would be lost to the development.

Due to the age of the tree and the high level of root severance required to implement this development coupled with the above-ground surgery works, in my opinion, it is likely that the tree will not be able to recover from these works and will die within a few years of the development, if not sooner; ultimately the tree in its living form would be lost to the development….”.

OR1 set out the relevant provisions of the Framework relating to veteran trees at OR1/6.15 and 6.16. and identified that there was a “clear presumption against the loss of such an important and irreplaceable habitat asset”.

OR1 explained that the IP had examined alternative ways of developing the site without impacting on T10 but concluded it could not do so (OR1/6.24–6 and 6.91–94). The pitch sub-base required the installation of a pre-cast concrete retaining wall down to a stable base to a depth of 2.5m, through the tree roots. Alternative site configurations had been considered, as well as 16 alternative sites.

OR1 set out the IP's proposals for compensating so far as possible for the loss of T10 by planting twelve new trees and the veteranisation of mature trees on the site (OR1/6.27–6.31, 6.96). However, it also reminded Members that “the presence of a potentially suitable compensation strategy is not reason to justify the loss of the veteran tree” (OR1/6.31, 6.96).

The public benefits of the proposals, which amounted to intensifying the year round use of the sports pitch, did not amount to “wholly exceptional reasons” necessary to justify the loss of the tree (at OR1/6.32).

OR1 summarised the IP's reasons for the development as follows:

“ Viability and Need for Development

6.80 It is advised that the YMCA Football Club has been on the current site since 1929 and now forms part of the YMCA Downslink Group (YMCA DLG), and is one of the biggest youth charities in the South East of England supporting 10,000 children less than 18 years of age and young people aged 18–25 years each year. The supporting statement advised that the provision of the AGP would allow the YMCA Downslink Group to provide greater opportunities for sport and additional funding for youth and support services that they require as well as supporting a Youth Pathway for young players in the Horsham Area to enable them to develop football skills and to meet their individual expectations at the highest levels.

The YMCA Downslink have advised that due to the level of demand at the club ‘they are unable to cater for the football clubs needs as well as the needs of the charity due to the quality of the grass pitch and limitations on hours of play each week on the existing grass pitch. It is advised that there is a significant local need and lack of provision of fully sized 3G AGPs which are available for community use and that this has an impact on the health and wellbeing of local residents, including vulnerable children that are supported by the YMCA Downslink Group. Although the Football Club is well run by a Management Committee and is staffed entirely by volunteers over the past five years, the cost of running the club has exceeded the club's income’.

6.81 Financial information detailing the level of income per annum and the underlying losses per year greater than any financial income received by the club (as set out in Para 3.15 of the Planning Addendum Statement). It is advised that existing revenues from the club are not sufficient to sustain the operation of the club in its current form despite 400 hrs of volunteer hours that support the club. The Addendum goes on to say that ‘a “do nothing” scenario is unsustainable in the medium term’. Finally, the Addendum states at paragraph 3.17 that without the significant investment of the 3G pitch the club ‘may not be sustainable and could cease to exist’.”

At OR1/6.82, limited weight was given to the viability of the club because of insufficient evidence:

“6.82 Whilst headline figures of the club's underlying losses of £34,200/year and required annual income of £120,000 are provided within the Addendum, no further detailed viability case has been presented by the applicants. It is not therefore possible to independently assess the viability of the club. Accordingly, limited weight can be given to the applicant's case that the club might cease to exist in the future if the 3G pitch is not provided.”

In the ‘Conclusions’, OR1 advised that the development was acceptable save for the...