The Queen (on the Application of Keith Lucas (on Behalf of Save Diggle Action Group)) v Oldham Metropolitan Borough Council Secretary of State for Education (First Interested Party) Wrt Developments Ltd (Second Interested Party) Unity Partnership (Third Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] EWHC 349 (Admin) |
| Docket Number | Case No: CO/2815/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2017 |
[2017] EWHC 349 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: CO/2815/2016
and
and
and
Mr Robert McCracken QC (instructed by Irwin Mitchell) for the Claimant
Mr D E Manley QC (instructed by Oldham Council Legal Services) for the Defendant
Hearing dates: 23 and 24 January 2017
Judgment Approved
Introduction
This case is about a disagreement over where Saddleworth Secondary School (the school) should be located. The claimant is a retired television producer and editor, and a local resident of Diggle, Saddleworth, near the north western edge of the Peak District National Park. He brings the claim in his capacity as chairman of the Save Diggle Action Group (the Action Group). The defendant is the local planning authority. It has granted three applications for planning permission and one for listed building consent, enabling the school to move to a new site in Diggle, in a building to be newly constructed.
The defendant (the council) wishes to dispose of the existing site of the school at Uppermill, in the central settlement of Saddleworth. The Action Group wishes the school to remain at its present location and argues that it can be satisfactorily redeveloped without moving to another site. The first interested party is a provider of funds for the project. The second interested party is the freehold owner of most of the proposed new site, which the council has an option to exchange for the current school site in Uppermill. The third interested party was the applicant in one of the planning applications, as it carries out certain highway functions on behalf of the council.
The interested parties have not taken part in the proceedings, which came before me by permission of Lang J granted on 22 September 2016. The grounds for challenge are many and varied, including complaints about the adequacy of the consultation process. The core of the challenge to the decision itself is that it was wrong in law for the local planning authority to rule out, as an alternative to granting the applications, leaving the school on its existing site.
The council says that it had already lawfully ruled out that option on non-planning grounds, in its capacity as education authority for the area; and that it was lawful, when acting as local planning authority, to treat that prior non-planning decision as a fait accompli. The claimant, by contrast, argues that relocating the school to Diggle would cause substantial damage to heritage assets, as the council now acknowledges; that it had not acknowledged that when it made the decision, as education authority, to prefer the Diggle site to the existing site; and that redeveloping the school on its existing site is accepted as a viable and affordable, albeit more expensive, alternative.
The claimant complains that there was never any direct weighing exercise measuring the damage to heritage the proposals entail, against the benefits, from a planning perspective, of leaving the school where it is and redeveloping it on that site, thereby avoiding that harm to heritage. The council contends that such a weighing exercise was unnecessary; the alternative of redeveloping the school on its existing site was rightly treated as an immaterial consideration which cabinet members could disregard.
An Outline of the Facts
In 2008, the former Building Schools for the Future programme (BSF) was still in existence. The council, as part of that programme, appraised certain options in 2008 and concluded that redeveloping the school on its existing site would be "expensive and disruptive", as an officer later expressed it. No concrete proposal emerged at that stage, and there was a change of government in 2010, leading to the BSF programme being discontinued.
Between 2008 and early 2013, the council was engaged in a marketing exercise for the sale of part of the now proposed new site for the school in Diggle. Sign boards were erected and advertisements placed in local newspapers. The site includes former manufacturing premises called the "pallet works". The buildings comprising the old pallet works were unoccupied. They were marketed as a site for new buildings. The likely market was considered to be purchasers wanting "cheap industrial space" (to quote from an email at the time).
The council's Mr Prestwich considered the rent per square foot "a little excessive". He asked the estate agents instructed to improve the marketing materials. This request was made in an email dated 8 January 2013. There is no evidence that the improvements requested were ever made. The marketing exercise did not lead to a sale of the pallet works. The council concluded that the site was no longer suitable to be used for employment purposes.
By March 2013, central government funding for redeveloping schools was channelled through the Education Funding Agency (EFA), an executive agency of the Department for Education. EFA funding was available for redeveloping the school. The council and the EFA turned their attention to how best to achieve that. Starting in 2014, the EFA undertook a feasibility study looking at various options for redevelopment of the school.
Two meetings took place in July and November 2014, attended by elected members of the council and representatives of the EFA. The latter clarified that the decision where the school should be located rested with the council, not the EFA. According to an uncontradicted note of the meeting on 8 July 2014, the budget available for the school building would be "fixed irrespective of the design chosen", but "[a]dditional funds will be provided by the EFA to cover abnormals (e.g. ground preparation, levelling and demolition). These will vary depending on the site issues involved". An uncontradicted media release following the meeting on 20 November 2014 emphasised the same point.
The results of the feasibility study were published in January 2015. At around the time the study was published, Diggle residents opposed to relocating the school to the site now proposed, met the EFA's Head of Capital, Mr Mike Green, in Manchester on 16 January 2015. They were aware that the site now proposed was one of the four that had emerged as front runners in the EFA's appraisal. And also among the four was the option of redeveloping the school on its current site.
The claimant's witness, an objector and Diggle resident, Mrs Samantha Marshall, was present at the meeting. Her written evidence was not contradicted by the council, nor the Secretary of State, one of the interested parties. Mrs Marshall explained that at the meeting Mr Green confirmed that all four possible sites were viable alternatives. The new school could be located at any one of them; none were ruled out on grounds such as cost, disruption or safety.
Mr Green explained at the meeting that the site now proposed was the EFA's preferred option, but if the council chose the school's existing location, that would also be funded by the EFA. Mrs Marshall accepts the council's assertion that the fixed amount allocated for building the new school by the EFA is £19,259,834, and that the cost of redeveloping the school on the existing site would be above that figure; but maintains that this does not mean the existing site is unaffordable, since "abnormal" costs would be available from the EFA over and above that budget allocation.
Mrs Marshall went to the trouble of emailing Mr Green on 21 January 2015 to "restate our understanding of your responses to the key points we discussed", since no formal minutes were taken. There is no evidence of any reply from the EFA. Her email attributes to Mr Green the statements that the recommended choice of the pallet works site in the feasibility study was due to it being the lowest cost option of the four sites examined; that the feasibility study had determined that all four options were feasible and none had been rejected on budgetary grounds; that the choice of site remained solely a decision for the council; and that if the pallet works site were chosen and planning permission subsequently refused, the focus would have to shift to a different site, which would include the existing one.
The EFA's feasibility study was published in the same month, January 2015. The authors of the study noted that the existing school buildings were in a poor state of repair. Of the four options considered, the pallet works site was identified as the preferred option. Searches and surveys had been undertaken to ensure that initial design proposals could be developed and that these would be deliverable, and accompanied by "robust costings". The recommendation of the pallet works site as the preferred option was "made on the option offering the best value for money to the public purse" (paragraph 3.1).
Eight criteria were used to evaluate the four options. They were: (i) estimated cost (ii) buildability/construction (iii) teaching/learning (iv) programme, (v) statutory issues (vi) ecology (vii) operational issues and (viii) public perception and opinion. Each of the four options was assessed against those criteria and the results tabulated (paragraph 4.1). The pallet works option obtained the best (lowest) score (17). The existing site option came in third (with a score of 21).
The "affordability" of each proposal was discussed in the body of the published feasibility study. The pallet works option would cost, it was estimated,...
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