The Queen (on the application of Thakeham Village Action Ltd) v Horsham District Council Abingworth Developments Ltd and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeMr Justice Lindblom
Judgment Date29 January 2014
Neutral Citation[2014] EWHC 67 (Admin)
Docket NumberCase No: CO/6530/2013
CourtQueen's Bench Division (Administrative Court)
Date29 January 2014
Between:
The Queen (on the application of Thakeham Village Action Limited)
Claimant
and
Horsham District Council
Defendant

and

(1) Abingworth Developments Limited
(2) Beamsync Limited
(3) Rydon Homes Limited
(4) Monaghan Mushrooms Limited
Interested Parties

[2014] EWHC 67 (Admin)

Before:

Mr Justice Lindblom

Case No: CO/6530/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Robert Fookes (instructed by Fortune Green Legal Practice) for the Claimant

Mr Reuben Taylor (instructed by the Council Solicitor of Horsham District Council) for the Defendant

Mr Rupert Warren Q.C. (instructed by Pittmans LLP) for the First Interested Party

Hearing dates: 5 and 6 November 2013

Judgment Approved by the court for handing down (subject to editorial corrections)

Mr Justice Lindblom

Introduction

1

For many years a large mushroom growing enterprise flourished on two large nurseries in Thakeham, a village near Horsham in West Sussex. In 2010 that enterprise was failing. Proposals for the re-development of both nurseries came forward and were eventually permitted in April 2013. One was for the demolition of the existing nursery buildings and the construction of 146 houses; the other was for new buildings in which mushroom production could continue. The claimant in this claim for judicial review, Thakeham Village Action Ltd. ("Thakeham Village Action"), challenges the planning permission granted by the defendant, Horsham District Council ("the Council") for the housing development. It does not attack the permission granted on the same day for the other proposal.

2

The two sites are known locally as the Abingworth Nursery and the Chesswood Nursery. Throughout the Council's handling of the proposals for their re-development, however, they have been referred to respectively as Site A and Site B.

3

The claim makes two main allegations of unlawfulness. The first relates to the process in which the Council screened the proposal for residential development on Site A under the regime for environmental impact assessment ("EIA"), concluding that an EIA for that development was not required. The second concerns the process by which the Council decided to approve the proposed housing, despite its being in conflict with relevant policy in the development plan and it would enable the redevelopment of the other site for mushroom production.

4

The applicant for planning permission was the first interested party, Abingworth Developments Ltd. ("Abingworth"). Abingworth and the second interested party, Monaghan Mushrooms Ltd. ("Monaghan Mushrooms") have taken an active part in the proceedings. The third and fourth interested parties, Beamsync Ltd. ("Beamsync") and Rydon Homes Ltd. ("Rydon Homes"), have not.

The issues for the court

5

Permission to apply for judicial review on four of the five pleaded grounds was granted on the papers by Lewis J. on 29 July 2013. Lewis J. refused permission on ground 2, which alleges a failure by the Council to comply with its duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to determine the application for planning permission unless material considerations indicate otherwise. The claimant renewed its application for permission on that ground. And with the agreement of all parties, I dealt with it at the hearing.

6

There are, therefore, three main issues for the court:

(1) whether the Council's screening opinion for the housing development was lawful and, if not, whether the planning permission granted for that development should therefore be quashed (ground 1 of the claim);

(2) whether the Council failed to comply with the requirements of section 38(6) of the 2004 Act (ground 2); and

(3) whether, in deciding to grant planning permission for the proposed housing, the Council acted unlawfully in relying on that proposal as enabling development for the proposed redevelopment of Site B (grounds 3, 4 and 5).

Background

7

Thakeham Village Action was incorporated in 2013. Its aims are "the preservation, protection and enhancement of the character of the Parish of Thakeham and its surrounding area".

8

Until 2010 both sites were occupied and used for mushroom growing by a company called Sussex Mushrooms Ltd. ("Sussex Mushrooms"). When its business was struggling to survive, Sussex Mushrooms agreed with Abingworth and Beamsync, which owned Site A, that Abingworth would carry out the comprehensive redevelopment of both sites: Site A for housing, once Abingworth had exercised its option to purchase the site, Site B for a new mushroom production facility, in which Sussex Mushrooms would consolidate its operation. The development on Site B was to be partly funded by a financial contribution from the development of Site A, secured by an obligation under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act").

9

In February 2010 the Council received from Boyer Planning Ltd ("Boyer Planning"), on behalf of Abingworth, two requests for a screening opinion, one for each proposal. The Council issued two screening opinions: for the Site A development in a letter dated 11 March 2010, and for the Site B development in a letter dated 19 March 2010. In both it concluded that an EIA was not required.

10

On 23 July 2010 Abingworth made two applications for planning permission. On Site A it sought full planning permission for a development described in the application (DC/10/1314) as:

"… the demolition of existing buildings and redevelopment of the Abingworth Nursery site for 146 dwellings, comprising of open market dwellings, 51 dwellings for the 55+ age group, 12 affordable dwellings, 20 key-worker dwellings, village hall building (including shop and doctor's surgery), Thakeham pre-school facility, community workshops/studio (957.5 sq.m.), sports pitches and changing rooms, cricket pitch and pavilion, children's play area, access roads, open space and landscaped areas (including footpaths)".

The application for planning permission on Site B (DC/10/1316) proposed the erection of new compost bunkers, and other buildings and structures for the cultivation of mushrooms.

11

On 19 April 2011, the Council's Development Control (South) Committee, following the advice of the Head of Planning and Environmental Services, resolved in principle to approve both proposals. The committee was advised that the residential development proposed for Site A was contrary to the development plan, but should be approved because its financial contribution of £2.7 million to the proposed redevelopment of Site B would make that proposal viable, and because it would bring other benefits to the community.

12

In August 2011, before the Council had granted planning permission for either proposal, the mushroom operation was acquired by Monaghan Mushrooms. Sussex Mushrooms went into administration. Monaghan Mushrooms did not want to pursue the approved proposal for Site B. The application for that proposal was withdrawn.

13

On 30 March 2012 Boyer Planning requested a screening opinion for a revised proposal. The Council issued a further screening opinion on 16 April 2012. Once again, it decided that an EIA was not required.

14

The second application (DC/12/0841) for planning permission for the redevelopment of Site B was submitted by Abingworth on 22 June 2012. It proposed a development described as:

"Demolition of existing growing rooms and surrounding ancillary buildings totalling 20,789.50 sq. metres. Removal of compost production on site. Erection of new growing rooms, referred to as farms (20,820 sq. metres) required for the cultivation of mushrooms, a replacement office building (553 sq. metres), staff cafeteria, pack house building ([3,003] sq. metres), ancillary plant structures and provision of open space and landscaped areas (including redirected footpaths). Other works include the refurbishing and extension of existing production and package buildings including alterations to the entrance of the site and provision of two dwellings for site management. …".

15

This proposal was accompanied by a document entitled "Capital Project Summary & Budget for Enabling Works", dated April 2012. The Council obtained from Ernst & Young LLP ("Ernst & Young") an independent review of that document, dated 31 July 2012.

16

On 4 September 2012 the Council's committee considered the new proposal for Site B, together with the proposal for Site A, which was unchanged. The members were told by the officer that Ernst & Young had advised that the proposed redevelopment of Site B, even if carried out by Monaghan Mushrooms, would require a subsidy of £3.75 million. The committee resolved to approve both proposals.

17

On 16 October 2012 the committee received a further report from the officer, advising it about the sequence of works envisaged on the two sites. It confirmed its resolution to grant planning permission for both developments, subject to an appropriate obligation.

18

On 19 April 2013 Abingworth and Monaghan Mushrooms as developers, Beamsync and Rydon Homes as landowners and several other parties entered into a section 106 agreement with the Council. Schedule 2 to the section 106 agreement prevents the planning permission for the redevelopment of Site A being implemented until specified works have been carried out on Site B, the sum of £3.75 million for those works paid by Abingworth to Monaghan Mushrooms, and the freehold ownership of Site B transferred.

19

The two planning permissions were issued on that day.

Issue (1): EIA screening — ground 1 of the claim

The EIA regime

20

The Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011, which came into effect on 24 August 2011, applied to the screening and determination of the second proposal for Site B. They did...

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