Court Of Appeal Dismisses Core Strategy And Judicial Review Challenges Based On Reasonable Alternatives, Reasons, Error Of Fact, Interpretation Of Development Plan Policy, And The Meaning Of ‘Playing Field’

01 Jan 2018

Planning and Environment

In a unanimous ruling (though with split reasoning) the Court of Appeal [Moore-Bick, Beatson, and Briggs LJJ] handed down judgement on Tuesday dismissing a challenge to the grant of planning permission for a mixed use housing site and an associated Core Strategy challenge (see decision here).

The decision will be of interest to those dealing with challenges to Core Strategy sustainability appraisals and the consideration of reasonable alternatives, as well as those who have had to grapple with the meaning of ‘playing field’ in planning matters. The Court held that:

  • A land swap proposal (to bring an existing school from a constrained site onto a larger former school site now proposed for a housing allocation) was not a reasonable alternative for the purposes of a sustainability appraisal because it was not realistic: (inter alia) it lacked financial credibility; was a proposal of no interest to the owners of the former school site, and was based on a claim of viability which was unsupported by independent consultants.
  • The meaning of ‘playing field’ is fact dependent calling for an exercise of judgment. The definition given in the Town and Country Planning (General Development Procedure) Order 1995 is not definitive as that Order provides a wide definition for use as a catch-all in the regime for consultation.

Chalfont St Peter Parish Council sought to challenge the grant of planning permission by Chiltern District Council to the Holy Cross Sisters Trustees Incorporated for mixed use development (including 198 dwellings), and the allocation of the site for housing.

The site had been used as a convent and convent school until 2006 when the school had closed due to financial constraints. The Parish Council wanted the site to be used for a new Church of England school which it argued could be relocated from its existing site as part of a land swap.

Chiltern District Council promoted the site through its Core Strategy as one of three strategic housing sites and, following examination, adopted its Core Strategy in November 2011. By that date the District Council had also granted outline planning permission for the development of the site. The Parish Council challenged the grant of permission in judicial review proceedings and the adoption of the allocation policy under s.113 of the Planning and Compulsory Purchase Act 2004. The challenge was dismissed by the High Court in 2013.

In the Core Strategy appeal, the Parish Council argued that the District Council was under an obligation to consider the land swap as a reasonable alternative under the 2001 Directive and Strategic Environmental Assessment Regulations, and that the Inspector’s report contained inadequate reasoning on this issue. Although the Court noted that the threshold for identifying a reasonable alternative is a low one, on the facts the land swap was not a reasonable alternative in the sense of being a realistic and commercially sound and viable proposal. On the reasons challenge, it was held in the leading judgement of Beatson LJ (Briggs LJ agreeing) that the Inspector did just enough to explain his reasons adequately, despite the fact that the Parish Council’s qualitative case for the land swap had not expressly been addressed, and in any event there was no substantial prejudice by any failure in the reasoning. Moore-Bick LJ considered the reasoning to be inadequate, but agreed that there was no prejudice caused.

In the judicial review proceedings, it was argued that there was an error of fact as to the extent of the playing fields on the site which vitiated the decision to grant planning permission. Having applied the ordinary requirements for error of fact in E v SoSHD [2004] EWCA Civ 49, it was held that the extent of the playing fields to be lost was not uncontentious and objectively verifiable. In any event, it was noted that it had not been shown that there was a mistake of fact in this case. The District Council’s planning committee had considered all of the information at the meeting in arriving at a determination as primary decision maker.

It was also argued that the District Council’s interpretation of its local plan policy – that it did not require a like-for-like replacement of a community facility – was incorrect as a matter of law. Applying Tesco Stores Ltd v Dundee CC [2012] UKSC 13, Beatson LJ held that the policy was framed in language whose application required an exercise of judgment, and that linguistic dissection of the text of the policy only went so far. The explanatory text and absence of prescriptive wording indicated that the decision maker was to be given flexibility as to how to meet changing community needs and that the policy was not concerned to achieve a like-for-like replacement facility. By contrast, Moore-Bick (with whom Briggs LJ agreed) felt obliged by Tesco v Dundee to provide a definitive interpretation of the policy. It meant that a community facility must be replaced by the same or broadly the same facility and the District Council had misinterpreted the policy. In other words, it would not be acceptable under the policy to replace a hospital with a completely different community facility such as a sewage plant or a library. However, there could have been no different outcome. Redevelopment of one kind or another was the only realistic option at the time of the decision so there was in reality no other community use to which the existing facility could be put.

It should be noted that the grant of permission in this case was made in 2010. No such delays should take place in the future with the opening of the Planning Court.

Mark Lowe QC and Asitha Ranatunga represented the Interested Party (Holy Cross Sisters Trustees Incorporated) in the High Court and Court of Appeal.