Cherkley Campaign – end of the road.

01 Jan 2018

Licensing, Planning and Environment

On Thursday 27th November Aikens LJ upheld the decisions of Jay J (who, after a contested hearing, had refused permission for Judicial Review – [2014] EWHC 3291 (Admin)) and Sullivan LJ (who refused an appeal against Jay J on paper) and so terminated Cherkley Campaign’s second attempt to frustrate development of a golf course in the grounds of Cherkley Estate in Mole Valley, Surrey. On 10th November, the Supreme Court refused permission to appeal the Court of Appeal’s decision rejecting its first attempt, for Court of Appeal see [2014] EWCA Civ 567 although its decision has only recently come to public attention.

There are three particular matters to note:-
•Of greatest substantive importance, in the Court of Appeal Richards LJ gave helpful guidance as to the differing roles played by policy and supporting text and as to how to approach the question of conformity with the development plan, see paragraph 21 in particular. In essence, it is the black letter policy to which regard should be had in that context. Whilst the refusal of permission should not be equated with approval by the Supreme Court, his approach should now be the starting point in terms of identifying what it is within a development plan should be conformed with or be accorded with.
•However, two important procedural points arise from the second set of proceedings. First, there was a failure to comply with a Court order as to the time within which to renew an application. Jay J applied the three stage approach recently set out in Denton v TH White [2014] EWCA Civ 906 to the case before him. He modified the approach by treating as relevant the public context but also the stricter approach to time given the advent of the planning court, see paragraph 37 of his judgment. He refused permission on the basis of delay and Aikens LJ did not consider it could be argued he erred at law.
•Secondly, Jay J also refused permission on the basis of abuse of process on the grounds that the relevant points raised in the second proceedings had been raised in the first proceedings. Again, Aikens LJ did not consider that he had erred in law. Both points demonstrate that public law claims are not wholly in a class apart from normal civil actions.

James Findlay QC of Cornerstone Barristers acted throughout on behalf of Mole Valley DC.