Sarah Moakes v Canterbury City Council

Hearing dates: 8 and 9 May 2024

Approved Judgment

This judgment was handed down at 12pm on Friday 24 May 2024 in court and by release to the National Archives.

Her Honour Judge Alice Robinson sitting as a Deputy High Court Judge:

Introduction

On 8 September 2023 the defendant (the Council) granted hybrid planning permission (“the Permission”), comprising full permission for the expansion of Canterbury Business Park to create 11,900 sqm winery with associated parking and landscaping and outline proposals with all matters reserved except access for up to 8,000 sqm of warehousing (“the Proposed Development”), at Land Southwest of Canterbury Business Park, Highland Court Farm, Coldharbour Lane, Bridge CT4 5HL (“the Site”). The decision to grant the Permission was made at a meeting of the Council's planning committee (“the Committee”) on 25 July 2023. The Claimant, who is a local resident, objected to the Proposed Development and she now applies to quash the Permission on four grounds. The Interested Party (“IP”) is the applicant (or one of the applicants) for planning permission.

Factual Background

The Site extends to some 6.70 hectares and comprises agricultural land. The Site lies approximately 6.4km to the south east of Canterbury City Centre and approximately 1.5km southeast of the village of Bridge. The north-eastern boundary of the Site is bounded by the Canterbury Business Park and directly north is a Grade II* Listed Building, Higham Park. The Site is also located within the Kent Downs Area of Outstanding Natural Beauty (“AONB”), the North Kent Downs Area of High Landscape Value and the Highland Court Conservation Area (“CA”). The Site is, therefore, said to be in a highly sensitive area in both heritage and landscape terms.

The Site forms part of an allocation in Policy C21 of the Council's Draft Canterbury District Local Plan to 2045 (“the Draft Local Plan”), which includes the expansion of Canterbury Business Park. A consultation on the Draft Local Plan pursuant to reg.18 of the Town and Country Planning (Local Planning) (England) Regulations 2022 concluded in January 2023. Natural England has objected to Policy C21 on the grounds of harm to the AONB. The Draft Local Plan is at a very early stage in the process towards adoption.

The Claimant lives close to the AONB and regularly walks and cycles close to the Site, using local trails which will be affected by the Proposed Development. The Claimant is also a member of the Campaign to Protect Rural England – Kent Branch (“CPRE Kent”). CPRE Kent objected to the Proposed Development and, on 29.09.23, sent a letter under the Pre-Action Protocol for Judicial Review (“PAP”) indicating its intention to bring a judicial review of the Council's decision to grant the Permission.

CPRE Kent ultimately decided not to bring a claim for reasons of cost. However, the Claimant, who was aware of CPRE's PAP correspondence, has decided to bring this claim in her own capacity. As well as being a member of CPRE Kent, the Claimant submitted an objection to the Proposed Development in a personal capacity. She also issued a judicial review claim in respect of a previous decision of the Council to grant permission for the Proposed Development, which was quashed with the consent of the Council.

The application form for the Proposed Development described the applicant as being Mr Gary Walters of “HICO Group with Chapel Down and Defined Wine.” The IP submitted a needs assessment stating that Chapel Down is England's leading and largest winemaker. In order to meet forecast growth and maintain its market-leading status within the country the company needs to consolidate its operations onto a single site with a circa 12,000sqm winery plus a 4,000sqm longer-term storage building alongside, together with future vineyards in the North Downs chalk seam area. The company has agreed with the landowner of the Canterbury Business Park that vines can be planted at Highland Court Farm. The company has also confirmed that the existing winery at Tenterden in Kent does not have the capacity to expand to meet their needs, is located poorly in terms of the wider highway network and does not have the space for ancillary storage/bottling facilities.

With regards to Defined Wine, they are said to be a leading specialist in the production of wine. Whilst they do not have vineyards of their own, they help winemakers produce wine, including Chapel Down. The company is already located at the Canterbury Business Park and requires expansion to meet their current and future needs. The proposed warehouse would be located adjacent to their existing warehouse and adjacent to the Chapel Down proposal, allowing benefits such as knowledge sharing and training.

The Proposed Development is EIA development pursuant to the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”). The application was accompanied by: (a) an Environmental Statement, (b) an Alternative Site Search and (c) a Landscape Visual Impact Assessment (“LVIA”). It was common ground that the Proposed Development comprises “major development” in the AONB and therefore engages para 177 of the National Planning Policy Framework (“NPPF”) which provided as follows:

“When considering applications for development within National Parks, the Broads and Areas of Outstanding Natural Beauty, permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:

a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and

c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”

A number of objections to the Proposed Development were submitted by statutory consultees, statutory bodies, interest groups and members of the public including the Claimant.

Natural England (“NE”) is a statutory body whose remit includes the conservation and enhancement of the landscape. It was a statutory consultee by virtue of s.6 of the National Parks and Access to Countryside Act 1949. NE sent a letter of objection, dated 15.01.23.

Historic England (“HE”) is a statutory body whose remit includes the preservation of historic buildings and conservation areas in England. It was a statutory consultee by virtue of reg 5A of the Planning (Listed Buildings and Conservation Areas) Regs 1990 (SI 1990/1519 as amended). HE also sent a letter of objection, dated 22.12.22.

The Kent Downs AONB Unit (“the AONB Unit”) is part of the Joint Advisory Committee (“JAC”) for the Kent Downs AONB. It is employed by Kent County Council and funded by contributions from the Department for the Environment, Food and Rural Affairs (“DEFRA”) and various local authorities within the county and provides advice on the management of the AONB. The AONB Unit has an agreement with the Council to provide consultation responses on planning applications at the request of a JAC member or a local authority planning officer. The AONB Unit submitted a letter of objection dated 16.12.22.

Upon receipt of these objections, the IP commissioned letters in response and made some changes to reduce the scale of the Proposed Development by removing 21,250m sqm of floorspace and reducing the site are from 10.9 hectares to 6.7 hectares. The above bodies were therefore re-consulted. NE provided a further letter of objection dated 20.3.23. HE provided a further letter of objection dated 20.3.23. The AONB Unit provided further letters of objection dated 22.2.23 and 13.03.23.

Objections were also sent by CPRE Kent dated 21.7.23 and others. The Claimant's objection is dated 25.7.23.

The Council's approach to considering the objections to the Proposed Development is the subject of ground 2 of the Claimant's challenge.

The Council's planning officers prepared advice for the Committee on the merits of the Proposed Development in an officer's report (“OR”). The Claimant avers that this provided an incomplete summary of objections from NE, HE and the AONB Unit. The OR concluded that the

“proposal meets the ‘exceptional circumstances’ test as set out in paragraph 177 of the NPPF and it would be in the public interest to permit the proposal. The applicant has demonstrated that there is a need for the development and that there are no alternative sites outside of the AONB to meet this need. The development would significantly expand the nationally important viticultural industry in Canterbury, supporting the growth of two Kent businesses including Chapel Down, England's leading and largest winemaker. The economic benefits of the scheme would be significant. I consider that the public benefits outweigh the harm to heritage assets (these having been given considerable importance and weight) and the loss of agricultural land.”

The Council's approach to para 177 of the NPPF is the subject of ground 4 of the Claimant's challenge.