The King (on the application of Peyton Davies) v Oxford City Council
| Jurisdiction | England & Wales |
| Judge | Karen Walden-Smith |
| Judgment Date | 15 November 2022 |
| Neutral Citation | [2022] EWHC 2883 (Admin) |
| Docket Number | Case No: CO/1603/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2883 (Admin)
HHJ Karen Walden-Smith sitting as a Judge of the High Court
Case No: CO/1603/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Reuben Taylor KC and Matthew Henderson (instructed by BDP PITMANS LLP) for the CLAIMANT
Isabella Tafur (instructed by OXFORD CITY COUNCIL LEGAL DEPARTMENT) for the DEFENDANT
Killian Garvey (instructed by DAC BEACHCRPFT LLP) for the THIRD INTERESTED PARTY
Hearing date: 3 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 15 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HHJ Karen Walden-Smith
This is the renewed oral application for permission to bring judicial review proceedings challenging the determination of Oxford City Council to grant planning permission on 25 March 2022 for the development of land at Hill View Farm, Mill Lane, Marston, Oxford (“the site”) described as “Demolition of existing buildings and construction of 159 dwellings, associated roads, infrastructure, drainage and landscaping” (“the development”).
Permission to apply for judicial review will be refused unless there is an arguable ground for judicial review which has a realistic prospect of success:
“Permission to apply for judicial review should be granted if a claimant shows that the one or more of the grounds gives rise to an arguable case that a reviewable error exists and there is no discretionary or other bar to bringing the claim. An arguable case requires that a point exists which merits investigation at a full hearing with all parties represented and with all relevant evidence and arguments on the law.” Per Lewis J (as he then was) Simone v Chancellor of the Exchequer [2019] EWHC 2609 (Admin.)”
On 20 June 2022, Mr Tim Smith, sitting as a Deputy High Court Judge (DHCJ), ordered that permission be granted to proceed on Grounds 3A and 3B of the application to bring judicial review proceedings, but refused permission on Grounds 1A, 1B and 1C and Ground 2 of the grounds. The Claimant does not proceed on Ground 2 but does renew the application for permission on Grounds 1A, 1B and 1C, which are as follows:
Ground 1A: The City Council (the Defendant) failed to identify that the pumping station forming part of the Development was a building and as such it failed to consider whether it was appropriate or inappropriate development for the purpose of policy G3 of the Oxford Local Plan and the National Planning Policy Framework (NPPF);
Ground 1B: The City Council failed to consider whether and/or to the extent to which the pumping station, the attenuation pond and access ways conflicted with the purposes of including land within the Green Belt. As such it failed to consider whether it was appropriate or inappropriate development for the purpose of policy G3 of the Local Plan and the NPPF;
Ground 1C: The City Council erred in its consideration of the impact of the pumping station, attenuation pond and access ways on the openness of the Green Belt. In particular, the City Council failed to consider the spatial aspect of openness which was a consideration that was so obviously material to the City Council's determination it was irrational to leave it out of account.
In refusing permission to bring judicial review proceedings on Grounds 1A, 1B and 1C, the DHCJ set out the following observations:
1) Grounds 1A-1C relate to various aspects of the Defendant's consideration of the impact on the green belt, especially in relation to the pumping station. There is a degree of overlap between some of them but taking the individual grounds in turn:
a) Ground 1A concerns the treatment of the pumping station. Reading the officer's report fairly and as a whole I consider that the Defendant did assess the impact on the basis that it was a building. Moreover it is entirely reasonable for the Defendant to rely upon the fall-back position established by permitted development rights. The First interested Party has elected to apply for an express permission rather than to rely upon Thames Water's permitted development rights. Those permitted development rights are clearly available. The Claimant's objection in its Reply is that there is no evidence of Thames Water's permitted development rights. Those permitted development rights are clearly available. The Claimant's objection in its Reply is that there is no evidence of Thames Water's willingness to exercise those rights. That is hardly surprising since the facility is being applied for expressly and hence there would be no need for Thames Water to say anything about permitted development rights. (By the same token, equally there is no evidence that it would not be willing). It was entirely reasonable for the Defendant to rely upon the likelihood of the statutory authority being willing to construct a facility designed to serve a development that needed it.
b) In relation to Ground 1B I accept that the passages from the officer's report cited by the Defendant in its SGR make clear beyond all but forensic doubt that the necessary policy consideration has been undertaken.
c) The same can be said for Ground 1C. It is true that the comments in the officer's report are limited but they do enough to reveal that the right considerations were in mind and were applied.
None of Grounds 1A – 1C are arguable.
The issue for this court, on the renewed application, is to consider afresh whether there is an arguable case that there was a distinct and material defect in the OR.
Factual Background
MK Dogar Limited (the First Interested Party) applied to Oxford City Council (the Defendant) for planning permission for the development on 30 November 2020. The Planning Committee of the Defendant met to consider the application on 26 May 2021 and were provided with a report on the planning application by a planning officer (the OR).
The site is described in the OR as follows:
“The application site measures 3.67 hectares in total area and consists of an open agricultural field and light industrial units. The site is located on the urban periphery of Oxford to the north west of Old Marston and formerly fell within the Oxford Green Belt. The site is allocated in the Oxford Local Plan under policy SP25 for residential development consisting of a minimum of 110 dwellings. Following the adoption of the Oxford Local Plan and the sites subsequent allocation for residential development, the land at Hill View Farm was released from the Oxford Green Belt. A section of the red line of the application site to the west and north west of the light industrial buildings still falls within the Oxford Green Belt, this area of the site is shown on the proposed site plan to contain landscaping, drainage/SuDS features, access paths and public open space”
and I have had the opportunity of seeing those elements of the development referred to in the grounds which fall within the Green Belt.
The OR dealt with the Greenbelt Development in paragraphs 10.13 to 10.20 as follows:
10.13 Policy G3 of the Oxford Local Plan requires that proposals for development in the Green Belt will be determined in accordance with national policy.
10.14 The NPPF (paragraphs 144–145) draws a distinction between appropriate and inappropriate development in the Green Belt. Inappropriate development is, by definition harmful to the Green Belt and should not be approved except in very special circumstances, this precludes the construction of new buildings other than those listed under Paragraph 145 of the NPPF; or specific types of development listed under Paragraph 146 of the NPPF. Hill View Farm, alongside the adjacent site to the south east (Land West of Mill Lane) was released from the Oxford Green Belt at the time that the Local Plan was adopted in June 2020.
10.15 The red line site plan includes a section of land to the west which falls within the green belt. Consequently, the proposals involve some limited development which falls within the Green Belt, this includes an attenuation pond, SuDS, access paths, biodiversity enhancement measures, public open space and a small pumping station. The section of the site lies to the west of the existing western boundary hedgerow and range of light industrial buildings, and consists of an agricultural field, which is also under the ownership of the applicant.
10.16 The development proposed within the parameters of the Green Belt would not consist of any new buildings. The only above ground “structures” on the green belt land are those associated with the pumping station, which would consist of a 1.2 metre high equipment cabin and metal fencing associated with the pumping station, the majority of pumping station would be below ground infrastructure. In terms of the use, officers consider that this would constitute an engineering operation, along with the associated SuD's works, which would be considered to be not appropriate development within the context of green belt land. The fencing and single equipment cabin associated with the pumping station would be minimal would be in scale and height and would be screened by adjacent landscaping and planting and would not affect the openness of the green belt. The pumping station would therefore align with the provisions of Paragraph 146 of the NPPF.
10.17 The proposals within the Green Belt also include the provision of access pathways, including a new pedestrian and cycle link connecting to the A40 cycle path and connections from the development site into this adjacent space allowing access for residents of the new development and other...
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