Kilmartin Properties (TW) Ltd v Tunbridge Wells Borough Council

This is an application for Judicial Review to quash a planning permission granted by the defendant, Tunbridge Wells District Council (“the Council”), on 28 April 2003 for a new District General Hospital at Pembury, Tonbridge Road, Tunbridge Wells in Kent. The planning permission was granted to the Interested Party, Maidstone and Tunbridge Wells NHS Trust (“the Trust”). The claimant seeking to quash the planning permission is Kilmartin Properties (TW) Limited who own a competing site at Knights Park, Knights Way, Tunbridge Wells which has also been the subject of an application for planning permission for a new District General Hospital. There has been a public inquiry into that application and the Secretary of State’s decision is awaited. The Pembury site is in the Green Belt. It contains an existing hospital consisting of a large number of associated buildings developed over the years. The proposal is to redevelop the site with a new District General Hospital catering for the needs of the catchment area.

The existing buildings on the Pembury site are one, two and three storeys high, the taller buildings being on the more elevated parts of the site. The permitted redevelopment includes four linked blocks, six storeys high, on the lower part of the site which, it was said, would not be higher above datum level than the tallest existing buildings on the elevated part of the site. The footprint of the redevelopment would involve an increase of 8,047 square metres over the existing footprint, which is primarily due to a proposed multi-storey car park of 8000 square metres. The existing parking on the site is surface car parking.

The application for planning permission for the Pembury site was accompanied by a supporting statement by the Trust and by an environmental statement. The application was the subject of an officer’s report which recommended the grant of permission subject to the conclusion of a section 106 agreement. It will be necessary to refer to that report in some detail as it contains the reasoning on which members of the Council acted, and it also formed the basis of the submissions by both parties in this case. The officer’s recommendation was accepted by the Council, so the application was referred to the Secretary of State as a departure from the development plan. He stated, in a letter of 22 November 2002, that the applicant for planning permission had taken PPG2 into account, having accepted that it was inappropriate development in the Green Belt and having put forward very special circumstances which, in the applicant’s view, outweighed the harm caused by the development. The Secretary of State decided not to call in the application for his own decision but to leave it to the Council to decide. As I have said, the Council finally granted planning permission on 28 April 2003.

Before coming to the grounds of challenge in this case I should first refer to the national and local planning policies that are relevant to the case.

The relevant national policy is contained in PPG2: Green Belt. Paragraph 1.4 of PPG 2 states that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The most important attribute of Green Belts is their openness. Paragraphs 3.1 and 3.2 of PPG2 state as follows:-

“3.1

The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.

3.2

Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

Paragraph 3.4 states:-

“The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes:-

----redevelopment of major existing developed sites identified in adopted local plans, which meet the criteria in paragraphs C3 or C4 of Annex C.”

The Tunbridge Wells Local Plan Review, which has not yet been adopted, identifies the Pembury site as a major existing developed site.

Paragraph C2 of Annex C states that, if a major developed site is specially identified for the purposes of the Annex in an adopted local plan, redevelopment which meets the criteria in paragraph C4 is not inappropriate development.

Paragraph C4, which deals with redevelopment, provides:-

“Whether they are redundant or in continuing use, the complete or partial redevelopment of major developed sites may offer the opportunity for environmental improvement without adding to their impact on the openness of the Green Belt and the purposes of including land within it. Where this is the case, local planning authorities may in their development plans identify the site, setting out a policy for its future redevelopment. They should consider preparing a site brief. Redevelopment should:

(a)

have no greater impact than the existing development on the openness of the Green Belt and the purposes of including land in it, and where possible have less;

(b)

contribute to the achievement of the objectives for the use of land in Green Belts (paragraph 1.6 above – see also paragraph 3.13);

(c)

not exceed the height of the existing buildings; and

(d)

not occupy a larger area of the site than the existing buildings (unless this would achieve a reduction in height which would benefit visual amenity).”

Paragraph C5 states that the relevant area for the purposes of criterion (d) excludes areas of hardstanding.

The Tunbridge Wells Local Plan was adopted in 1996. It simply showed the Pembury site as being within the Green Belt. The Knights Park site was shown as being in the Rural Fringe although part of its access road would be within the Green Belt. When the Local Plan was adopted, the idea of a single site District General Hospital had not progressed to the stage where there could be a specific site allocation in the Plan. In 1998 the Council produced an Issues Paper as a pre-deposit consultation paper in connection with the Local Plan Review. That document showed a sequential preference of site choice as being, firstly the site of the Kent and Sussex Hospital in Tunbridge Wells town centre, secondly the Pembury site and, thirdly a greenfield site. There is no separate documentation relating to that sequential process. The first deposit of the Local Plan Review was dated May 2001. At that time it was envisaged that the requirement was for a 450 bed hospital. By November 2001 the Trust was proposing a 600 bed hospital. The planning permission that was granted is for a 595 bed hospital. The second deposit of the Local Plan Review was dated October 2002.

The emerging Local Plan Review contains three policies that are relevant. Policy MGB1 states that there is a presumption against permitting new development in the Green Belt unless it conforms, inter alia, with policy MGB2. Policy MGB2 states:-

“….redevelopment proposals within the Major Development Site at… Pembury Hospital…will only be permitted if all of the following criteria are satisfied:

1 Development would not have an adverse impact on the openness or visual amenity of the Metropolitan Green Belt;

2 Development would not lead to a major increase in the developed proportion of the defined Major Developed Site:

3 Development would not exceed the height of any of the existing buildings; and

4 Where redevelopment is proposed, development would not occupy a footprint which exceeds that of the buildings to be replaced unless this would achieve a reduction in height which would benefit visual amenity.”

It can be seen that the criteria in Policy MGB2 are intended to reflect, broadly speaking, the criteria in paragraph C4 of Annex C of PPG2. The argument in this case therefore centred on the criteria in paragraph C4 of Annex C of PPG2.

Policy CS1 of the Local Plan Review states that redevelopment of existing buildings within the Pembury Hospital Major Development Site will be permitted to provide a new District General Hospital.

The position therefore is that there is a policy in the emerging Local Plan Review to permit the redevelopment of the Pembury site for a new District General Hospital provided that there is a compliance with the criteria in Policy MGB2 of the Local Plan Review, which in turn reflect the criteria in paragraph C4 of Annex C of PPG2 .

The first ground of challenge is that the District Council erred in law in material respects in its interpretation and application of planning policy relating to the Green Belt. In order to understand that ground of challenge it is necessary to refer to the relevant parts of the officer’s report which was before Council members when deciding this application. Mr Prentis, who has made a witness statement in these proceedings, was the principal author of the report, which was made to the Council’s Western Area Planning Applications Committee and which went on to be considered by the Council’s Planning Board and formed the basis of the Council’s decision.

In the section headed “Metropolitan Green Belt”, the report stated:-

“(a)

Policy Context

The site is located within the Metropolitan Green Belt where National and Local Planning Policy contains a strong presumption against inappropriate development. In the absence of any allocation in the adopted plan, the application is a departure from adopted planning policies. It is thus necessary to consider whether there are other material planning considerations, which indicate that planning permission should be granted. National Policy on Green Belts is set out in PPG2, which indicates that very special circumstances are required to justify an exception to Green Belt policy. Construction of new buildings in Green Belts is inappropriate, unless it is for “limited infilling or redevelopment of major existing developed sites identified in adopted local plans which meet the criteria in paragraph C3 or C4 of Annex C.”

The report then stated that more detailed advice on the redevelopment of major developed sites was contained in Annex C of PPG2 and it set out the criteria in paragraph C4. It continued:-

“The Local Plan Review identifies Pembury Hospital as a major developed site. Policy MGB2 sets out criteria, which are very similar to those in PPG2. Whilst this is not an adopted local plan, it is a material consideration as identified above. In my view the criteria set out in PPG2 should be taken into account as part of the overall assessment of these proposals.

(b)

Height of Development

With regard to the height of the development, existing buildings are a mixture of one, two and three storeys in height. However, the taller buildings are set in the more elevated parts of the site. The proposals locate the main hospital buildings at a lower level, in the south eastern part of the site. The sections submitted with the applications indicate that the new buildings would be no higher than the height of the existing Maternity Unit. The key issue is the impact of development on the openness of the Green Belt. Whilst the buildings themselves would be significantly taller than the existing, due to their proposed siting and the topography of the site, they would not have a greater impact on the openness of the Green Belt.

(c)

Footprint of Development

With regard to the “footprint” of development, (the site area covered by the buildings), the proposed new hospital would cover only 47 sq.m. more than the existing footprint of 25,000 sq.m. I consider this difference to be insignificant. Of greater significance is the proposed 900 space car park, which adds 8000 sq.m. to the footprint of the scheme. I have asked the applicant to provide further justification for the scale of this structure. The issue of the total number of spaces is considered in the Transport section of this report. The applicants have provided a report of the various options they considered before proposing this multi-storey structure. All options involve some multi-level parking. Some options increase the amount of open air parking to reduce the extent of the multi-level structure. One option has 521 additional open air spaces, with multi-level parking reduced to 379 spaces. The applicants conclude that the selected option is preferable for a number of reasons:-

•

It provides optimum quality, directness and safety of pedestrian movements between the car park and the hospital entrance.

•

It is a good solution for mobility impaired users.

•

Extensive at-grade parking would require lengthy ramped routes to negotiate levels changes.

•

Less area required for circulation and access routes.

•

It avoids visual intrusion of extensive surface parking areas.

(d)…

(e)

Conclusions on Green Belt Policy

In assessing the Green Belt issues the applicants draw attention to the following factors which they suggest constitute very special circumstances:-

•

The intrinsic benefits of the site, being an accessible location which avoids the need to take greenfield land, as set out in the Local Plan Review

•

The particular opportunities afforded by the topography and woodland setting of the site.

•

The need for comprehensive new hospital facilities to meet the healthcare needs of the catchment area.

My conclusions on these issues is that the Council, through the Local Plan Review, has expressed support in principle for the benefits of a new single-site hospital at this location. Moreover, the identification of Pembury as a Major Developed Site is a significant consideration. This approach, albeit not tested through a local plan inquiry, is fully in accord with the approach of PPG2. I am satisfied that the policy criteria relating to height of development are complied with. I have some concern regarding the extensive footprint of the multi-storey car park. However, the applicants have demonstrated benefits in terms of reducing visual impact and meeting the needs of future users of the hospital. These are important considerations, which amount to very special circumstances justifying the additional footprint. I do not consider that the extension to the site at the north east corner would materially harm the openness of the Green Belt. I conclude that the proposals accord with the general intentions of National policy on Green Belts and with the emerging policy of the Local Pan Review. ”

Towards the end of the officer’s report, there was a final conclusion which, insofar as it related to the Green Belt issue, stated:-

“With regard to the Green Belt issue, it is significant that the Local Plan Review has expressed support for a single site hospital at this location. I am satisfied that the policy criteria relating to height have been complied with. I have some concerns regarding the extensive footprint of multi-storey car parking. However, the applicants have demonstrated benefits from adopting this approach. I conclude that, whilst the application is a departure, it accords with the general intentions of National policy on Green Belts.”

The ground of challenge relating to the interpretation and application of Green Belt policy as advanced on behalf of the claimant by Mr Lindblom QC, and by Ms Lieven in reply to the Council’s submissions, in essence had three strands to it – the failure to consider harm from inappropriate development, the way in which the criteria relating to the height and footprint of the development were dealt with, and the failure to deal with very special circumstances justifying the whole development. There is necessarily some interconnection between those three strands.

Dealing first with the alleged failure to consider harm from inappropriate development, reliance was placed on paragraph 3.2 of PPG2 and the decision of Sullivan J. in Doncaster Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 2081 (Admin) where he stressed the importance of recognising that there were two types of harm to be weighed in the balance in Green Belt cases, the harm by reason of inappropriateness and any additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt. Ms Lieven referred to them as policy harm and real harm by way of shorthand description. Sullivan J. stated that it was very important that full weight should be given to the proposition that inappropriate development is by definition harmful to the Green Belt.

It was submitted in the present case that the proposed development is inappropriate development within the meaning of PPG2 (which is accepted by the Council) and that the officer’s report had failed to take account of the harm caused by the fact that it was inappropriate development.

Mr Drabble QC, on the other hand, submitted on behalf of the Council that the whole purpose of considering very special circumstances is to determine whether they outweigh the harm from inappropriateness and any other harm. As is stated in paragraph 3.2 of PPG2, very special circumstances to justify inappropriate development would not exist unless the harm from inappropriateness and other harm is clearly outweighed by other considerations. He therefore submitted that the Council’s consideration of very special circumstances necessarily imported consideration of harm from inappropriateness.

Turning to the way in which the officer’s report dealt with the height of the buildings, Mr Lindblom submitted firstly that it was wrong to say, as was said twice in the officer’s report, that the policy criterion relating to the height of the development was complied with. Secondly, he submitted that the officer’s report had run together criterion (c) of paragraph C4 of Annex C of PPG2 (height of buildings) with criterion (a) of that paragraph (openness of the Green Belt) by saying that the new buildings, although taller than the existing buildings, would not have a greater impact on the openness of the Green Belt due to their proposed siting and the topography of the site. He submitted that it was not permissible to remedy a failure to comply with criterion (c) by pointing to compliance with criterion (a). It was suggested that that was what the officer’s report had done by saying that the height criterion was complied with.

Mr Drabble accepted that the officer’s report was wrong in saying that the height criterion was complied with but he pointed out that the members were told that the new buildings were taller than the existing buildings. He submitted that the infelicitous wording did not make any difference because this was a very special circumstances case in any event. The officer’s report should have said that there was a breach of the height criterion but that it had no impact on the openness of the Green Belt. It was submitted that that was not something that should lead to the planning permission being quashed.

So far as the footprint of the development is concerned, Mr Lindblom submitted that the analysis in the officer’s report imported into criterion (d) of paragraph C4 of PPG2 (the footprint criterion) matters which properly fall within criterion (a) of that paragraph (openness of the Green Belt). Furthermore, it was contended that, in paragraph (e) of the officer’s report containing the conclusion on Green Belt policy, the report had only relied on very special circumstances to justify the breach of the footprint criterion, not the height criterion. That was because the report had wrongly stated that the height criterion was complied with.

That led to the third strand of the claimant’s argument, namely that there was a failure to deal with very special circumstances justifying the whole development. Ms Lieven pointed out that the first sub-paragraph of paragraph (e) of the report was reciting the applicant’s case and that the next sub-paragraph was giving the officer’s conclusions. The very special circumstances referred to in the first sub-paragraph did not form part of the officer’s conclusions. There was therefore, she said, a failure by the officer to appraise the very special circumstances for the whole development.

Mr Drabble warned against the danger of subjecting the officer’s report, which was not a planning decision by the Secretary of State or an inspector, to a detailed linguistic interpretation giving rise to the danger of the planning permission being quashed because the report was badly expressed although the officers had properly grappled with the planning merits of the case. He placed particular reliance on the supporting statement submitted with the application by the Trust which showed clear acceptance that the height and footprint criteria were not complied with and which dealt with the very special circumstances to justify the whole development. He submitted that it was clear from reading the report as a whole that the very special circumstances set out in the first sub-paragraph of paragraph (e) of the report, which had been taken from the supporting statement, were accepted as uncontroversial by the officers. The only criticism that could be made was that the report should have first said that there was a breach of the height and footprint criteria and then have referred to the very special circumstances. It was suggested that it would be wrong to quash the planning permission for that transposition.

There is no doubt that there are shortcomings in the way that the officer’s report dealt with the application of Green Belt Policy to this site. Firstly, the report did not expressly refer to harm by reason of inappropriateness; secondly, the officer wrongly advised members that the height criterion in paragraph C4 of Annex C of PPG2 had been complied with; and thirdly, the report did not contain an express conclusion about the existence of very special circumstances justifying the development as a whole. I have to decide whether those shortcomings, individually or cumulatively, should result in the quashing of the planning permission.

When deciding that question, I bear in mind firstly, the need to read the officer’s report as a whole; secondly, the need to avoid an overly legalistic or technical approach to the report as if construing a legal document; and thirdly, the need to remember that I am considering what members of the Council would have taken into account when granting planning permission based on the officer’s report.

It is clear from the part of the officer’s report headed “(a) Policy Context”, which I have quoted in paragraph 16 above, that members would have been aware that this was inappropriate development in Green Belt terms and that it was necessary to show very special circumstances. The whole purpose of having to show “very special circumstances”, as referred to in the first sub-paragraph of that part of the report, is to establish that they clearly outweigh the harm by reason of inappropriateness and any other harm. That is the very nature of the creature, as explained in paragraph 3.2 of PPG2. The existence of the harm by reason of inappropriateness is therefore implicit in recognition of the need to show very special circumstances. I accept that it would have been better if the officer’s report had made express reference to the harm by reason of inappropriateness, and that is why I have referred to its omission as a shortcoming of the report, but I do not accept that its omission should lead to the quashing of the permission because the existence of that harm is implicit in the recognition of the need to show very special circumstances.

Of more significance is the wrong advice, mentioned twice in the report, that the height criterion in paragraph C4 of Annex C of PPG2 was complied with. As I have said, it is accepted on behalf of the Council that that was wrong advice because the six storey buildings would plainly be taller than the existing three storey buildings. I accept that, in giving the reason for that advice in the paragraph headed “(b) Height of Development”, the impression is given that the height criterion and the openness criterion in paragraph C4 of Annex C of PPG2 have been run together. I have to decide whether that error should lead to the planning permission being quashed.

In deciding that question it is necessary to bear in mind, firstly, that members were told in terms in the report that the proposed new buildings would be significantly taller than the existing buildings. They would have been under no illusion about that. Secondly, they were told that those new buildings would be located at a lower level on the site than the taller of the existing buildings which are on the more elevated parts of the site with the result that they would be no higher than the height of the existing Maternity Unit, as shown on the section submitted with the application. That is factually correct although, of course, the height criterion is not dealing with height AOD. However, the net result of all that is, in the officer’s view, that, due to the proposed siting of the buildings and the topography of the site, the proposed buildings would not have a greater impact on the openness of the Green Belt. In my view, that reasoning cannot be faulted. The only error is that it does not result in the height criterion being complied with. What the officer should have said was that the height criterion was not complied with, because the proposed buildings were taller than the existing buildings, but that the matters that he mentioned were very special circumstances justifying the breach of that criterion. I see nothing wrong with the officer’s report identifying the impact of the development on the openness of the Green Belt as being the key issue. That is entirely consistent with paragraph 1.4 of PPG2 which states that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open, and that openness is the most important attribute of the Green Belt.

It is plain therefore that, whilst the officer’s report should have said that the height criterion was not complied with because (as members knew anyway) the proposed buildings were significantly taller than the existing buildings, the report contained well reasoned justification why that situation was acceptable in Green Belt terms. In those circumstances, regrettable as the error was, I am satisfied that, if the report had said that there was a breach of the height criterion but that it was acceptable in Green Belt terms for the very special circumstances set out in that part of the report, the decision of the members would have been exactly the same. I do not, therefore, consider that this error in the officer’s report should lead to the quashing of the planning permission.

Finally in relation to this first ground of challenge, there is the shortcoming of the report failing to contain an express conclusion about very special circumstances justifying the development as a whole. I accept that the structure of the part of the report headed “(e) Conclusions of Green Belt Policy” is unfortunate because it starts by listing the three matters which the Trust suggested were very special circumstances and then proceeds to give the officer’s conclusion, which only expressly refers to very special circumstances justifying the additional footprint. The failure to refer to very special circumstances in connection with the height of the buildings was due to the conclusion that there was not a breach of that criterion. However, as I said, the reasons why the taller buildings were acceptable were spelt out in detail in the report and would have constituted the very special circumstances had the report concluded that there was a breach of that criterion.

It was clear from the report that this was a “very special circumstances” case. The three very special circumstances relied on by the Trust and set out in this section of the report were, so far as the report was concerned, uncontroversial. The benefit of avoiding the need to take a greenfield site was implicit in the fact that this site was identified as a major developed site in the Local Plan Review; the opportunities afforded by the topography was one of the matters referred to when dealing with the height of the buildings; and the need for the new hospital was universally accepted. Those were the benefits of a new single-site hospital at this location which the officer’s report referred to immediately following the reference to the very special circumstances relied on by the Trust.

In my view, anybody reading the officer’s report as a whole would conclude from it that the proposed development was inappropriate development in Green Belt terms but that there were very special circumstances which justified the grant of permission. Whilst, therefore, I accept that the way in which the report dealt with the question of very special circumstances had its shortcomings, I do not consider that there was any possibility of the members coming to a different conclusion if the report had dealt with this issue in a more structured way.

Having therefore considered the three shortcomings identified in the officer’s report, I do not consider, for the reasons I have given, that they would justify, either individually or cumulatively, the quashing of the planning permission.

I come next to the second ground of challenge which relates to the Council’s consideration of Knights Park as an alternative site. There are two aspects of the argument. Firstly, it was submitted that the Council failed to address the question whether the Knights Park site should be considered as an alternative site by way of a comparative assessment but, secondly, if that question was considered, the decision not to consider it as an alternative site was an unreasonable one.

This issue arises from the following paragraph in the officer’s report which stated:-

“Some of the objections to the emerging policies refer to an alternative site for the new hospital at Knights Park. An outline planning application has been received for a hospital on that site. However, in my view the application for the Pembury site should be considered on its own merits. It is not appropriate to delay this application until such time as an alternative can be considered.”

I was referred to two cases dealing with consideration of alternative sites. The first case was Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 53 P&CR 293 where Simon Brown J., as he then was, set out the principles derived from the authorities. He stated as the second principle:-

“Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significantly adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.”

Thereafter Simon Brown J. referred to a number of instances of those types of development and he then quoted from a passage in the judgment of Oliver LJ in Greater London Council v Secretary of State for the Environment [1986] JPL 193 when he stated:-

“…comparability is appropriate generally to cases having the following characteristics: First of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development, or at least only a very limited number of permissions.”

Finally, Simon Brown J. said that there may be cases where, even though they contain those characteristics, it could properly be regarded as unnecessary to go into questions of comparability, particularly if the environmental impact was relatively slight and the planning objections were not especially strong.

The other case referred to was R (on the application of Scott) v North Warwickshire Borough Council [2001] EWCA Civ 315 where Laws LJ, having referred to the Trusthouse Forte case and some other cases, stated at paragraph 30:-

“If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. Generally speaking – and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J. – such circumstances will particularly arise where the proposed development, although desirable in itself, involves, on the site proposed, such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes in the mind of a reasonable local authority, a relevant planning consideration upon the application in question”

Those cases suggest that it may be relevant to consider an alternative site where the proposed development would involve “significant adverse effects” or “inevitable adverse effects” or “conspicuous adverse effects”.

In support of the submission that the Council failed to address the question whether the Knights Park site should be considered as an alternative site by way of comparative assessment, it was contended that the four characteristics mentioned by Oliver LJ in the Greater London Council case were satisfied, but that the Council had not grappled with the question whether the development on the Pembury site would give rise to such conspicuous adverse effects as to call for a comparative assessment. Alternatively, it was contended that, if the Council had grappled with that question, the conclusion reached was unreasonable bearing in mind, firstly that the two applications were concurrent (the Pembury application having been made on 18 February 2002 and the Knights Park application having been made on 1 May 2002), secondly that the identification of the Pembury site in the Local Plan Review was subject to objection and had its genesis in a smaller scale hospital, thirdly that the Pembury site was, in effect, being given preference by being considered first so that it had the character of a self-fulfilling prophecy and, finally, that it was an inappropriate development in the Green Belt which breached two of the criteria in paragraph C4 of Annex C of PPG2 and therefore gave rise to conspicuous adverse effects.

Mr Drabble referred me to the speech of Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.780F where he stated that it is a matter of law whether something is a material consideration but that the weight it should be given is a matter of planning judgment for the planning authority. Mr Drabble also relied on the dictum of Laws LJ in the Scott case that alternative sites would only be relevant in exceptional circumstances, particularly where there were conspicuous adverse effects. Mr Drabble submitted that it was for the Council, not for the court, to decide whether a detailed comparison with the Knights Park site was necessary. It was clear from the report that officers were aware of the Knights Park site as an alternative site but that they had decided not to carry out a comparative assessment. It was contended that such a conclusion could only be impugned on the ground of irrationality, which could not be substantiated because it was clear from the report, as confirmed by Mr Prentis in his witness statement, that the Pembury site was able to accommodate the development without conspicuous adverse effects.

I can understand why the claimant may feel aggrieved about the way in which the Knights Park site was dealt with in the officer’s report because it was certainly dealt with quite shortly. However, I have to decide whether an error of law was involved in the way it was dealt with.

The first point to note is that the officers were plainly well aware of the Knights Park site at the time of the report to the Western Area Planning Committee in July 2002. Not only had the Knights Park application been made almost three months previously but it was expressly referred to in the relevant paragraph of the report quoted in paragraph 38 above. It is clear from that paragraph that the officer’s view was that the Pembury site should be considered on its own merits and should not be held up by consideration of the Knights Park site as an alternative site. It is right to say that no further reasons for that conclusion were given. However, consideration of the Knights Park site as an alternative site would inevitably have involved a comparative assessment of the two sites. It is therefore implicit in the decision that the Pembury site should be considered on its own merits that it was not considered necessary to carry out such a comparative assessment. That is not an altogether surprising conclusion bearing in mind the officer’s assessment of the acceptability of the Pembury site.

In paragraph 20 of his witness statement, Mr Prentis, the author of the report, states:-

“The Borough Council was and remains satisfied that this site is able to accommodate this use without any conspicuous adverse effect especially on the openness of the Green Belt. It was therefore not considered that the relative merits of alternative sites had to be evaluated.”

I bear well in mind the danger of relying on ex post facto reasoning, but it seems to me that such reasoning can fairly be deduced from the content of the officer’s report. Whilst it would perhaps have been better if the report had spelt out expressly that alternative sites, including the Knights Park site, would not be considered because there were no conspicuous adverse effects from the development of the Pembury site, it can, in my view, be fairly deduced from the report read as a whole.

As Laws LJ said in the Scott case, consideration of alternative sites is only relevant in exceptional circumstances, and there was nothing in the officer’s report to suggest that the development of the Pembury site would involve significant adverse effects such as to warrant the exceptional course of considering alternatives.

In my judgment, the officers did take into account whether to embark on a consideration of alternative sites, including the Knights Park site, which would have involved a comparative assessment if it had been done, but decided not to do so. That was a matter for planning judgment with which this court should not interfere unless it can be shown to be Wednesbury unreasonable. I have taken into account the matters referred to in paragraph 43 above which were advanced on behalf of the claimant in support of the contention that the decision not to consider the Knights Park site as an alternative site was Wednesbury unreasonable, but I am not persuaded that they satisfy the high threshold to justify that conclusion. I do not, therefore, accept the second ground of challenge.

The third ground of challenge relates to the way in which the environmental statement dealt with the potential for contamination which arises from the history of the site as a workhouse and then as a hospital. The environmental statement contained seven pages dealing with that aspect of the matter. Although no chemical ground investigation had been carried out, desk based research and a site walkover had indicated that the potential for contamination from such matters as previous bulk storage of fuels and chemicals and the disposal of clinical waste was high. It was summarised in the officer’s report in the following way:-

“The site is on Lower Tunbridge Wells Sandstone, a minor aquifer within the Environmental Source Protection Zone. Due to the historic uses of the site (oil storage, burning pits, sewage works) there is a high potential for localised contamination. There is a potential risk to the acquitter from ground works and piling. The proposed mitigation is a programme of site investigation and remediation. The Environment Agency has recommended conditions on these issues.”

The environmental statement gave details about the potential for ground contamination and details of the recommended remedial measures.

The condition in the planning permission intended to deal with this issue is condition 23 which states:-

“No development approved by this permission shall be commenced until:-

(i)

The application site has been subjected to a detailed scheme for the investigation and recording of contamination and a report has been submitted to and approved by the Local Planning Authority.

(ii)

Detailed proposals in line with current best practice for the removal, containment or otherwise rendering harmless of such contamination (the “Contamination Proposals”), have been submitted to and approved by the Local Planning Authority.

For each part of the development Contamination Proposals relevant to that part (or any part that would be affected by the development) shall be carried out either before or during such development as appropriate.

If during development works any contamination should be encountered which was not previously identified and is derived from a different source and/or of a different type to those included in the Contamination Proposals shall be submitted to and approved by the Local Planning Authority.

If during development work site contaminants are found in areas previously expected to be clean, then their remediation shall be carried out in line with the agreed Contamination Proposals.

Reason: to prevent pollution of the water environment and harm to human health.”

I was referred to the case of Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400, the facts of which were very different to this case because it concerned extreme contamination from four gasholders and other buildings covering 20% of the site which was likely to influence the extent and layout of the proposed residential development. The question in that case was whether there should have been an environmental impact assessment. Pill LJ stated at paragraph 37:-

“In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects.”

Laws LJ indicated at paragraph 46 that an EIA may not be required if the nature, availability and effectiveness of prospective remedial measures are already plainly established and plainly uncontroversial.

Mr Lindblom submitted that the contents of the environmental statement failed to identify and assess the environmental effects of potential contamination or to identify the mitigation measures, as required by Part II of Schedule 4 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. By virtue of regulation 3(2) of the Regulations and the definitions of environmental information and environmental statement in regulation 2(1), the environmental statement has to contain the information in Part II of Schedule 4. Paragraph 2 of Part II of Schedule 4 specifies “a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,” and paragraph 3 of Part II specifies “The data required to identify and assess the main effects which the development is likely to have on the environment.”

It was submitted on behalf of the claimant that the environmental statement only indicated the range and nature of possible environmental effects, and that the effect of condition 23 was to leave the matters referred to in that condition at large to be dealt with by submitting a subsequent scheme of investigation and remediation, rather than by including those matters in the environmental statement so that they could be the subject of public consultation before planning permission was granted.

Mr Drabble submitted, firstly, that the potential for ground contamination was not of a scale or nature which could be said to constitute one of the “main effects” which the development was likely to have on the environment so as to come within paragraph 3 of Part II of Schedule 4 of the 1999 Regulations. Mr Prentis gave evidence to that effect in his witness statement. Secondly, Mr Drabble submitted that the remedial measures, which were set out in detail in paragraph 9.6 of the environmental statement, were modest in scope and plainly easily achievable and that they were of a nature, availability and effectiveness already plainly established and uncontroversial, so as to bring them within the scope of the dicta of Pill LJ and Laws LJ in the Gillespie case. Reliance was placed by Mr Drabble on the fact that Mr Prentis’ evidence in his witness statement supported those assertions and that they were unchallenged by the claimant. Thirdly, it was pointed out that there was no evidence adduced by the claimant to suggest that there was likely to be any problem from contamination, nor was anybody else concerned about it. It was submitted that there was no reason to suppose that the suggested measures could not be relied upon to deal with any potential problem.

The environmental statement contained a great deal of information about potential ground contamination and the proposed mitigation measures. I have not thought it necessary to set it all out in this already overlong judgment, but I am not persuaded that the information fell short of the statutory requirements. It is really a matter of fact and degree, but I am satisfied that the information was sufficient to identify the potential environmental effects and that the mitigation measures fell within the category of those mentioned in the Gillespie case, namely that they were modest in scope, plainly easily achievable and of an established and uncontroversial nature. The Environment Agency, the responsible statutory body in relation to this aspect, recommended that the matter could be dealt by way of condition. In my judgment, it was appropriate to deal with it in that way. It was not a major controversial issue. I do not consider that this ground of challenge gives rise to any justifiable reason for quashing the planning permission.

Having carefully considered the three grounds of challenge, I am not persuaded that they provide sufficient justification for quashing the planning permission in this case. It follows that this application must be dismissed.