The Queen (on the application of Chalfont St Peter Parish Council) v Chiltern District Council Holy Cross Sisters Trustees Incorporated (Interested Party)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Richard Foster |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] EWHC 2073 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2546/2011 |
| Date | 17 July 2013 |
[2013] EWHC 2073 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Foster
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CO/2546/2011
and
Ian Dove, QC (instructed by Richard Buxton, Cambridge) for the Claimant
Morag Ellis, QC (instructed by Sharpe Pritchard) for the Defendant
Mark Lowe, QC and Asitha Ranatunga (instructed by Pothecary Witham Weld) for the Interested Party
Hearing dates: 17 th–18 th April, 2013
This is an application for Judicial Review by the Claimant to quash the planning decision by the Defendant dated 21 st December 2010 granting planning permission for a mixed use development including 198 dwellings on the site of the former Holy Cross Convent School in Chalfont St Peter Buckinghamshire ("the site").
Permission has been granted to apply for Judicial Review on two grounds which the Claimant avers amount to errors of law. First, errors of fact in relation to the playing fields which form part of the site. Secondly, that the Defendant failed to have regard to the retention of the existing site.
The future use of the site has engendered considerable local interest. The Claimant describes the planning permission the subject of these proceedings as "the most significant planning issue facing the Claimant's community for the foreseeable future". It describes the site thus: "The site which this claim is concerned with has a depth of history reaching back into medieval times and including 17 th century associations with the Quakers and Judge Jeffreys". More recently the site and buildings have been operated by the Interested Party as a private convent school which closed in 2006. The Claimant and others within the local community have expressed an aspiration to re-locate the village school to the site, and more specifically have put forward proposals at various stages for a mixed use of the site including both housing and the retention of the existing buildings as a school, and for the sale of the existing village school for development.
The planning application under review was considered by the relevant committee of the Defendant on 5 th August 2010. The proposal was described as follows:
"Outline planning application with matters of access only to be considered in detail at this stage. The redevelopment of the site to provide a mixed use comprising up to 198 dwellings (Use Class C3), of which 35% will be affordable housing; the retention of the existing bungalow adjacent to the graveyard; a residential care home incorporating up to 74 bedrooms and up to 3,370 square metres (Use Class C2); retention of existing chapel; retention and relocation of existing playing field together with a provision of a network of permissive footpaths through the existing woodland for use by the public and provision of open space. The whole development is to be served from new and altered vehicle access from Gold Hill East, and Grange Road, and a new pedestrian access off Market Place, with associated car parking and off-site highway works."
The officer's recommendation was:
"Minded to grant conditional permission subject to the conditions set out below, with the decision deferred for referral of the application to the Secretary of State and for the prior completion of a section 106 Planning Obligation. Final decision delegated to Head of Planning Services".
The committee's decision followed this recommendation, and the formal approval under delegated powers was dated 21 st December 2010.
These proceedings have generated a large volume of documentation with bundles extending to many hundreds of pages. However, on a proper analysis, the issues are straightforward and much of the material placed before the court is irrelevant to those issues.
The first ground upon which permission to proceed with Judicial Review was granted alleges errors of fact in relation to the playing fields at the site. The original planning application submitted by the Interested Party dated 26 th February 2010 was subsequently amended to that considered by the Defendant's committee on 5 th August 2010. In response to the original application Sport England (by letter dated 6 th April 2010) objected on the grounds of loss of sports facilities and playing pitches. This letter set out Sport England's adopted Playing Fields Policy position which it is said accords with "Planning Policy Guidance 17: Planning for Open Space, Sport and Recreation" ("PPG17"). In accordance with this policy position Sport England will oppose development on playing fields unless at least one of five exceptional circumstances exists. The Interested Party (as applicant) relied upon Exception E1 which applies when there is an excess of playing field provision in the area. Sport England did not accept this.
The amended planning application took into account this objection and is summarised in the Officer's Report for the 5 th August 2010 meeting (at paragraph 10) thus:
"The original scheme submitted under this planning application did not include the retention of the playing field. As such it would have been for the applicant to show that there was no continuing community need for the facility. Furthermore, Sport England raised objection to the loss of the playing field. Subsequently, as stated previously the application has been amended and a revised scheme has been submitted which now retains the playing field. Whilst the layout remains only indicative at this stage, it does show the retained playing field, which is of the same size and shape as the existing playing field, to be relocated with this site".
The report goes on to point out Sport England's continuing objection on the basis that the retained playing field would not comply with Sport England's Exception E4 requiring that "the proposed development would be replaced by a playing field or playing fields of an equivalent or better quality". The report challenges Sport England's assumption that a far larger area of the site had been used as a sporting facility, and the officer suggests that the evidence provided by the Interested Party should be preferred.
The Officer's Report also advised the committee members not only on PPG17 but also on Policy R2 of the Adopted Chiltern District Local Plan ("policy R2"). This provided:
"Development which would result in the loss of any existing sports facility to a non-sports use will be refused, unless either of the circumstances set out below applies. An exception to this policy may be permitted in the following circumstances: (i) the applicant demonstrates to the satisfaction of the Council that there is no continuing community need for the facility and it is not possible to use the facility for other sport, OR (ii) alternative provision of at least an equivalent size, suitability and convenience, as defined in Policy R1 (i) and (ii) is made AND (iii) other policies in this Local Plan are complied with. For the purposes of this policy outdoor sports facilities include existing school playing fields, land used as school playing fields and equipped childrens' playgrounds".
The publication of the Officer's Report generated a further response from Sport England (by later dated 3 rd August 2010). This letter produced pictures which Sport England argued showed sporting facilities across the site, and not just in the concentrated area indicated by the Interested Party. The letter argued that the whole of a site on which there is at least one playing pitch is defined as a "playing field", relying upon the definition in Article 10(2) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended) ("the 1995 Order"). Sport England had also previously sent to the Defendant a counsel's opinion supporting...
To continue reading
Request your trial
-
Chalfont St Peter Parish Council v Chiltern District Council Holy Cross Sisters Trustees Inc. (Interested Party in C1/2013/2479)
...ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT HHJ Richard Foster [2013] EWHC 1877 (Admin); [2013] EWHC 2073 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Moore-Bick Lord Justice Beatson and Lord Justice Briggs Case No: C1/2013/......
-
R Christopher Neophytou v Enfield Council
...unless an error of this sort is demonstrated. Mr Atkinson points to R (Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 2073 at [21] as an example of this well-established principle: “In my judgment there was clearly conflicting evidence as regards the extent of the......
-
R Chalfont St Peter Parish Council (Claimant/Prospective Appellant) v Chiltern District Council (Defendant/Prospective Respondent) Holy Cross Sisters Trustees Incorporated (Interested Party)
...development. 4 The judge dealt with the judicial review challenge to the lawfulness of the planning permission in his judgment ( [2013] EWHC 2073 (Admin)). The permission had been challenged on two grounds: firstly, that the decision had been based upon an error of fact as to the extent of ......