Out of bounds
The High Court has quashed planning permission for a golf course and spa development. Douglas Edwards QC and Sarah Sackman explain why.
Construction of a five star golf course on an historic estate in Surrey has been stopped in its tracks by legal action taken by campaigners who say it will ruin the countryside.
The case of Cherkley Campaign Ltd, R (on the application of) v Longshot Cherkley Court Ltd [2013] EWHC 2582 (Admin) concerns a conflict between private developers and public campaigners including the Campaign to Protect Rural England and local ecological groups such as the Surrey Hills Board, Butterfly Conservation and Surrey Botanical Society.
The developers sought planning permission to develop exclusive private golf and hotel facilities in the scenic setting of the Surrey Hills. The campaigners wished to prevent such a development in protected landscape of national importance.
Much of the legal argument revolved around whether a 'need' for further golfing facilities could be demonstrated as required by policy matrix. The developers argued that proof of private 'demand' for exclusive golf facilities equated to 'need'.
Haddon-Cave J found that such a proposition was fallacious. He held that “the golden thread of public interest is woven through the lexicon of planning law, including into the word 'need'. Pure private 'demand' is antithetical to public 'need', particularly very exclusive private demand”. Once this is understood, he said, the case answers itself.
Officers of Mole Valley District Council advised members to reject the planning application for the hotel and golf course development, but members rejected their advice and granted planning permission.
A legal challenge was brought by Cherkley Campaign Limited by way of judicial review. The main issues in the claim were (1) whether the local planning authority had properly interpreted a requirement in the Local Plan to demonstrate a 'need' for an additional golf course, particularly where the policy indicated that golf courses should “be directed away from protected landscape”, (2) whether the golf course in question would respect the landscape, and (3) whether it was acceptable in Green Belt terms.
The judge ordered that the planning permission be quashed on all three of those grounds.
In relation to need, Mr Justice Haddon Cave observed that at the time Cherkley Campaign Limited took the case to judicial review in the High Court, there were more ‘Top100’ golf courses in Surrey than in any other county and indeed there are 627 courses within 50 miles of Cherkley [§ 111].
The judge held that 'need' does not simply mean 'demand' or 'desire'by private interests. It “means 'required' in the interests of the public and the community as a whole … The fact that Longshot could sell membership debentures to 400 millionaires in the UK and abroad who might want to play golf at their own exclusive, ‘world class’, luxury golf club in Surrey does not equate to a 'need' for such facilities in its proper public interest sense”. [§103] The judge found that Mole Valley councillors had misunderstood the requirement to show a 'need' and their decision was perverse. [§122]
In relation to the development’s impact on landscape, the judge found that members had failed to properly apply national and local policies concerning protected landscape and had acted irrationally in deciding that the character of the landscape would not be compromised by the golf course. [§159]
Finally, in relation to Green Belt, the judge found that the council had "at best paid lip service to Green Belt policy" as to whether "very special circumstances" existed which "clearly outweighed" the harm to permit development to proceed. [§195]
An interesting legal issue raised by the case concerned the interaction between planning 'policy' and the supporting text which explains the operation of the policy in the context of the application s38(6) of the Planning and Compulsory Purchase Act 2004.
The IP and D had sought to argue that when the policies in the local plan dealing with golf courses were saved, the saving provisions applied solely to the wording of the policy and not the supporting text. The judge roundly rejected that argument (paras 82-86) saying it would make no sense “policies” shorn of their intellectual underpinning and interpretative context.
Douglas Edwards QC and Sarah Sackman are barristers at Francis Taylor Building. Instructed by Richard Buxton Solicitors, they acted for the successful claimant Cherkley Court Limited.