The Queen (on the application of The Forge Field Society and Others v Sevenoaks District Council West Kent Housing Association and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWHC 1895 (Admin) |
| Docket Number | Case Nos: CO/735/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2014 |
[2014] EWHC 1895 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case Nos: CO/735/2013
CO/16932/2013
and
Mr James Strachan Q.C. (instructed by Winckworth Sherwood) for the Claimants
Mr Alexander Booth (instructed by the Council Solicitor of Sevenoaks District Council) for the Defendant
Hearing dates: 24 and 25 March 2014
Introduction
In the village of Penshurst in Kent there is a field called Forge Field, on which planning permission has twice been granted for a development of affordable housing. Those two planning permissions are the subject of these proceedings.
There are two claims for judicial review. The claimants in both are the Forge Field Society ("the Society"), an unincorporated association which opposes the development of Forge Field, its chairman, Mr Robert Rees, and its secretary, Mr Martin Barraud. In both claims the claimants seek an order to quash a decision of the defendant, Sevenoaks District Council ("the Council"), to grant planning permission for the proposal. In the first claim the claimants attacked the planning permission granted by the Council in October 201The second claim challenged the permission for the same development granted a year later in October 2013. The applicant for planning permission was the first interested party, the West Kent Housing Association ("West Kent"). The second interested party, Viscount De L'Isle, owns Forge Field through the Penshurst Place Estate.
On the second day of the hearing the Council abandoned its defence of the first planning permission. But it still maintained that the second had been lawfully granted.
Background
Penshurst is in the High Weald Area of Outstanding Natural Beauty ("the AONB") and the Metropolitan Green Belt. Forge Field is about a third of a hectare of rough grassland, sloping down from the High Street. It is in the Penshurst Conservation Area, within the settings of Star House, a grade II* listed building erected in 1610, and Forge Garage, a building in the Arts and Crafts style, now divided into the Old Smithy and Forge Garage Cottage, and listed at grade II.
In 2009 the Council accepted that the need for affordable housing in Penshurst should be met by building about five two-bedroom houses and making them available as affordable dwellings for local people.
West Kent submitted its first application to the Council in August 2011. It sought planning permission for six affordable dwellings, each with two bedrooms. In April 2012 the Becket Trust Housing Association ("the Becket Trust") submitted an application for planning permission for affordable housing on another site in Penshurst, known as Becket's Field. As originally submitted, the application was for the construction of 10 affordable dwellings on a site including land owned by West Kent. But this proposal was later amended. West Kent's land was excluded from the site and the proposed development was reduced to a scheme for the construction of six new dwellings on land owned by the Becket Trust.
West Kent's proposal was put before the Council's Development Control Committee at its meeting on 4 July 2012. The committee received a report from the Council's Chief Planning Officer, recommending approval. The committee accepted that recommendation and resolved to grant planning permission, subject to conditions and a section 106 agreement to secure the provision of housing to meet local need and the necessary highway improvements. The Becket Trust's amended proposal was not considered by the committee at that meeting.
Both proposals were considered by the committee on 18 October 2012. The members were advised that the two schemes were alternatives to each other. Either of them would satisfy the identified need for affordable housing in the parish. The committee resolved to grant planning permission for West Kent's proposal and to refuse permission for the Becket Trust's. The decision notices were issued on 25 October 2012.
The first claim for judicial review was lodged with the court on 22 January 2013. Permission for that claim to proceed was granted by Lewis J. on 29 July 2013.
In the meantime, on 23 May 2013, West Kent made its second application for planning permission, for a proposal identical to the first, but with a revised design and access statement. On 17 July 2013 the Society's solicitors, Winckworth Sherwood, objected to that application on its behalf. On 14 August 2013 the Council's Legal Services Manager sent Winckworth Sherwood a draft of the Chief Planning Officer's report on the second application, and invited their comments on it. Winckworth Sherwood responded on 5 September 2013. They said the Council could not determine the new application for planning permission at Forge Field without there being a real risk of bias. But they also made several comments on the draft report, one of which was that the Council had not investigated the possibility of an acceptable development of affordable housing at Becket's Field, jointly pursued by West Kent and the Becket Trust.
The committee considered the second proposal on 3 October 2013, and accepted the officer's recommendation to approve it. Planning permission was granted on 4 October 2013.
On 14 November 2013 the claimants issued their second claim for judicial review. On 9 December 2013 Patterson J. ordered a rolled-up hearing of that claim, to be fixed for the same day as the hearing of the first.
The issues
As I have said, the Council no longer opposes the first claim. On its behalf Mr Alexander Booth acknowledged, while making his submissions, that on one of the Society's grounds, which alleged that the Council had failed to comply with its statutory duties in making a decision with implications for the settings of listed buildings and for the conservation area, the claimcould not properly be resisted. No other party in those proceedings had opposed the claim. In the circumstances Mr James Strachan Q.C., for the Society, invited me to order that the planning permission of 25 October 2012 be quashed. He recognized, of course, that the claimants' success in the first case would be of no use to them unless they also won in the second.
The second claim raises five issues:
(1) whether the second planning permission was tainted by the appearance or risk of bias because when it was granted the Council was still fighting the claim for judicial review against its previous decision on the same proposal (ground 1);
(2) whether the Council failed to discharge its duties under sections 66(1) and 72 of the Listed Buildings and Conservation Act 1990 ("the Listed Buildings Act") when considering the likely effects of the development on the setting of the listed buildings and on the conservation area (ground 1A);
(3) whether the Council misdirected itself on the principles of policy for the AONB in the National Planning Policy Framework ("the NPPF") (ground 2);
(4) whether the Council failed properly to consider alternative sites for the development of affordable housing to meet the identified need (ground 4); and
(5) whether the Council's decision was irrational (ground 5).
Ground 3 of the claim, which alleged that the Council had failed to screen the second proposal under the regime for environmental impact assessment, was not pursued after the Council had provided the claimants with a copy of its screening opinion.
Issue (1) – the appearance or risk of bias
On 2 July 2013 West Kent's planning consultants, Smiths Gore, wrote to the Council to explain why the second application for planning permission had been submitted. The claim for judicial review would delay the project and might jeopardize its funding. West Kent had therefore decided to submit the proposal to the Council again, with further explanatory information in the revised design and access statement.
When he wrote to Winckworth Sherwood on 14 August 2013 the Council's Legal Services Manager said the draft officer's report had taken into account "the criticisms raised by the legal challenge". But he said this was not an admission by the Council that the previous officer's report was deficient in any way, or that there was any error in the decision to approve the first proposal. The Council recognized that this was "an important but controversial development for Penshurst". It wanted the Society to be satisfied that its views had been considered and that "procedurally" the decision was correctly taken. The Society was therefore invited to consider the draft committee report and to tell the Council if it thought there was any omission or error in the draft report.
In their letter of 5 September 2013 Winckworth Sherwood said that if the Council believed the 2012 planning permission was not vulnerable to challenge it was "inevitable that neither the officers nor the Council will be approaching the reconsideration with the required degree of objectivity and lack of bias". Pointing to the decision of the Court of Appeal in R. (on the application of Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927, they said itwas "obvious that there is a real risk that the Council, in taking its decision on this fresh application, will wish to support the decision that they have already taken on the 2012 permission in order to try and avoid the consequences of the forthcoming judicial review and any costs implications". But without prejudice to that point they made "some limited preliminary...
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