Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
THE QUEEN ON THE APPLICATION OF MACEPARK (OLBBURY) LIMITED
(CLAIMANT)
-v-
FIRST SECRETARY OF STATE
(DEFENDANT)
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MR M KINGSTON QC, MR D PARK AND MISS M GREKOS (instructed by Shoosmiths) appeared on behalf of the CLAIMANT
MR P BROWN (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
J U D G M E N T
MR JUSTICE SULLIVAN:
Introduction: This is an application under section 288 of the Town and Crown Planning Act 1990 ("the Act") to quash a decision of the first defendant, the Secretary of State, contained in a decision letter, dated 12th January 2004, refusing planning permission for hotel, health and leisure facilities, car parking, amenity space, staff residential accommodation, access and landscaping on land at Purley Chase Golf Club, Ridge Lane, Atherstone, Warwickshire ("the site").
The Factual Background: The site is some 57 hectares in extent and includes the golf club and some adjacent land. The site is in the countryside. Ridge Lane, a small hamlet with a few community facilities, is about 300 metres to the west. The nearest substantial settlements are Atherstone, some 3 kilometres to the north, and Nuneaton, about 2 kilometres to the south. In 1996 planning permission was granted for the construction of a new golf club house, 40 bedroom hotel, indoor leisure centre and 15 holiday lodges at the site. That planning permission was still extant at the time of the inspector's report.
On 3rd May 2002 the claimant applied for planning permission for a complex comprising a 152 bedroom hotel, 450 seat lecture theatre, 20 training rooms, 52 syndicate rooms, creche and a leisure centre of just over 4,000 square metres. The total floor space would be 19,198 square metres. A separate staff accommodation block, containing 32 bedsits, communal lounge and kitchen and two two bedroomed flats, was also proposed.
The second defendant, the local planning authority, was minded to grant planning permission, but the Secretary of State called in the application for his own determination and recovered jurisdiction, so that he, rather than one of his inspectors, would determine the application.
Mr Parry, an inspector, was appointed to hold an enquiry and report to the Secretary of State. He held an enquiry between 1st July and 6th August 2003. At the enquiry the local planning authority strongly supported the application and the third defendant, the county council, opposed it. A large number of interested parties appeared at the enquiry, some supporting and some opposing the proposals. In his report, dated 31st October 2003, the inspector recommended that planning permission be granted, subject to conditions, and upon the basis of a section 106 agreement.
In his decision letter the Secretary of State explained why he did not accept that recommendation and why he had decided that planning permission should be refused. In paragraph 6 of the decision letter the Secretary of State agreed with the inspector that the main issues were as follows:
"Conflict or otherwise with the development plan.
Conflict or otherwise with policy guidance in PPG 13.
Conflict or otherwise with policy guidance in PPG 6.
Conflict or otherwise with policy guidance in PPG 7.
Conflict or otherwise with policy guidance in PPG 3.
Conflict or otherwise with policy guidance in PPG 21."
Before turning to the submissions of Mr Kingston QC on behalf of the claimant it is convenient to summarise the respective positions of the Secretary of State and the inspector on those main issues by reference to the inspector's and the Secretary of State's overall conclusions. Having stated that the statutory development plan comprised the up to date Warwickshire Structure Plan and the, somewhat dated, adopted North Warwickshire Local Plan, the inspector's overall conclusions were as follows:
Policies in the development plan seek to focus most new housing and employment development into the large towns in the Borough. However the policies in question do not preclude some development outside settlement boundaries. Moreover, Policy I.8 in the Structure Plan, the development plan policy specifically directed at tourist, leisure and recreation development, indicates such development may be acceptable outside urban areas if certain criteria are satisfied. Although framed in terms of the local plan policies, in my view the policy is also relevant for development control purposes. Many of the key matters relevant to the acceptability or otherwise of the proposal are embraced by the criteria in the policy. For reasons set out above, I consider that the proposal complies with the criteria in question. In the light of the judgment in R v Laura Cummins, I therefore consider that the proposal is generally in accordance with the development plan.
That need not be conclusive. It is also necessary to consider whether other considerations might justify a refusal of planning permission. Significantly, in that regard, the application promotes at a rural location a large scale development likely to generate a large amount of travel. While these matters could justify a decision contrary to the development plan, in this instance they have to seen in the light of the following points. Firstly, for reasons given previously, I consider that a rural location is required if the operational needs of a corporate management training centre are to be met. It is not a form of development suited to a town centre location. Moreover, I consider that such a centre necessarily would be large scale, and reasonably include ancillary developments such as restaurant, bar and leisure facilities. That said the extensive range of leisure facilities seem to me to exceed the reasonable needs of delegates. I note also that the location of the staff accommodation block does not reflect the search sequence in PPG 3 albeit that no sequentially preferable sites have been identified.
So far as travel demand is concerned, the site itself is not well served by conventional bus services but it is readily accessible to major road, rail and air infrastructure. Significantly, the completed section 106 agreement provides a carefully conceived package of measures intended to maximise the use of alternatives to travel by private car. Key provisions being the appointment of a Travel Co-ordinator to promote and monitor a Green Travel Plan and the provision of a shuttle bus service for the use of delegates and staff alike.
In the final analysis the decision in this case seems to me to be evenly balanced. While I consider the proposal to be generally in accord with the development plan it sits uneasily with some aspects of national policy guidance. In the event I have concluded that the latter concerns should not be overriding. There are three main reasons for this. Firstly, the so-called 'fallback' consideration. More precisely the fact that the site has the benefit of an extant permission for a new hotel, leisure centre and associated development. If the extant permission was to be fully implemented, the resultant development would offer far fewer sustainability benefits and generate a comparable level of travel demands. Secondly, the current application has few site specific disadvantages. In my opinion it would have limited adverse visual impact and could secure landscape and environmental enhancement of land that I consider to be 'previously developed' in terms of PPG 3. The highway concerns of many local residents are wholly understandable but in my opinion are not overriding. Finally, the proposal could provide significant economic and social benefits in a generally deprived area where a raft of national and regional policies favour employment diversification and economic regeneration. In combination these reasons are exceptional if not unique. On balance, therefore, I consider that a grant of planning permission is justified and I recommend accordingly."
The Secretary of State's overall conclusions in the decision letter were as follows:
The Secretary of State considers that in view of the location of the site in a rural area outside any settlement identified for development, the proposal is contrary to development plan policies relating to the location of housing and employment development. He therefore disagrees with the inspector that the proposal is generally in accordance with the development plan (IR 161) and also disagrees with his view (IR 162) that this is not a form of development suited to a town centre location. He further considers that because of its location the proposal conflicts with PPGs 6 and 13. There is further conflict with PPG 13 because, even though a package of measures has been drawn up to maximise the use of alternatives to travel by private car (IR 163), the amount of parking would be likely to encourage delegates and others to drive to the centre. There is additional conflict with PPG 6 because the need for the leisure element of the proposal has not been demonstrated and no sequential approach has been carried out to identify alternative sites for part or all the elements of the proposal. The development is also contrary to PPG 7 because it is a major development in the countryside.
The Secretary of State recognises that the scheme offers benefit in terms of new jobs and regeneration in an area of economic deprivation. He has also had regard to the section 106 agreement dated 27th August 2003 which he accepts offers a number of benefits related to the proposal, as summarised by the inspector in IR 126.
The Secretary of State has considered carefully the three reasons put forward by the inspector as to why policy and development plan concerns should not be overriding (IR 164). However, he does not give as much weight as the inspector does to the perceived disadvantages of the fallback situation were permission for this scheme to be refused. Secondly he considers that the current application site is wholly unsuited to the proposed development by virtue of its location, notwithstanding there would not be significant visual impact, and the site is previously developed land. Although he does attach weight to the economic and social benefits that would arise, he does not consider that these outweigh the significant conflicts with policy that he has identified."
The Claimant's Submissions: (1) The Development Plan: The inspector explained why he considered that the proposals were generally in accordance with the development plan in paragraphs 132 to 136 of his report:
In this instance the development plan consists of the Warwickshire Structure Plan and the North Warwickshire Borough Local Plan. So far as the former is concerned, it is evident from the Statement of Common Ground that a large number of policies are relevant to the proposal. In particular Policy GD 3 indicates that most new development will be directed towards towns of over 8,000 people; policy GD 5 adds that these towns are also first priority locations for most new housing and employment development. The sequential approach set out in the latter policy confirms that locations not in or adjacent to such towns or the Green Belt should be easily accessible to town centre services and be well served by public transport. Priority should be given, in any event, to the availability of previously developed land. The general strategy policies are reflected in turn in rural areas policies such as RA 1 and RA 3.
Given its scale and rural location, at first sight the proposal sits uncomfortably with the Structure Plan strategy and associated policies that seek to focus most new housing and employment development in urban centres. That said none of the policies rule out the possibility of development in rural areas. Moreover, the Structure Plan contains one policy that is specifically directed at tourist, leisure and recreation development -- Policy I.8. This indicates, in effect, that such development may be acceptable where certain criteria are satisfied. Significantly, it does not anticipate or require relevant development to be located within an urban centre."
I interpose at this point to say that policy I.8 is in the industry section of the Structure Plan, under the heading "Tourism, Leisure and Recreation", and is in the following terms:
"Local plan policies should support new tourist, leisure and recreation development where:
the facility will create new jobs meeting local needs for employment and provide community benefits;
there is easy access to the main transport routes and urban areas;
there is the opportunity to maximise the use of alternatives to the private car; and
the development would not undermine the intrinsic value of natural or cultural assets."
Returning to the inspector's report, paragraph 134:
"Many of the matters identified in Policy I.8 are addressed in detail later in the report. At this time it is sufficient to note in respect of the identified criteria that, firstly, the proposal would provide jobs to meet local needs in a deprived part of Warwickshire. Important community benefits are also in prospect. Secondly, while the road network in the immediate vicinity of the site is not high standard, the site is close to a number of major national highways and is accessible (by shuttle bus) to main line railway stations and two regional airports. Proximity to major transport infrastructure facilities is clearly important given that the training on offer would attract delegates from a wide area, including overseas. Thirdly, a raft of measures are promoted to maximise the use of alternatives to the private car. The applicant is committed to the provision and subsequent monitoring of a Green Travel Plan that would set targets to reduce reliance on the private car and single occupancy journeys. Lastly, I am satisfied that the proposal would not undermine the intrinsic value of natural or cultural assets. The final clause in the policy adds that existing attractions and facilities should be supported where employment opportunities and environmental improvements can be secured. Co-location with the golf club means that in this instance they would be.
Where the development plan contains policies that tend to pull in different directions, as they frequently do with large scale developments, it is necessary to decide which is the dominant policy (R v Laura Cummins). In this instance I am in no doubt that Policy I.8 is the dominant policy in the Structure Plan and as such should be accorded especial weight. To my mind it is the key policy to consider when deciding if the proposal complies with the Structure Plan."
In paragraph 136 the inspector dealt with the other element of the Development Plan, the North Warwickshire Borough Local Plan, and observed:
"While relevant, these policies need to be viewed in the context of policy I.8 of the Structure Plan. Having met the criteria in the latter policy, I have concluded that the proposal is not contrary to the development plan."
In paragraph 135 the inspector referred to Ouseley J's decision in R (Cummins) v Camden London Borough Council [2001] EWHC Admin 116, to which he had been referred by the claimant. In that case it had been submitted on behalf of the claimant that section 54A required a local planning authority to examine the way in which each relevant policy impacted upon the proposal. Ouseley J pointed out that "accordance" for the purposes of section 54A was accordance with the plan, not with each relevant policy in the plan. He agreed with the following passage in paragraph 48 of R v Rochdale Metropolitan Borough Council ex parte Milne [2001] 81 P&CR 27:
"It is not at all unusual for development plan policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: 'is this proposal in accordance with the plan?'. The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach."
In paragraph 164 Ouseley J said:
"It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given."
In paragraph 165 he counselled against imposing a "legalistic straitjacket" upon an appraisal carried out for the purposes of section 54A.
The Secretary of State's approach to the Development Plan issue is contained in paragraphs 7 to 10 of the decision letter:
The Secretary of State takes the view that, given its scale and rural location, the proposal does not comply with those policies referred to in IR 132 which seek to focus most new housing and employment development in urban centres (policies GD 3 and 5) or, in the case of development in rural areas, that provide that development should meet the needs of the rural population, rural businesses and agricultural (Policy RA 1) or that housing and industrial development should be planned in or adjacent to towns and villages or be related to a hierarchy of settlements determined by local plans (RA 3).
The Secretary of State notes that the inspector has concluded (IR 135) that Structure Plan policy I.8 is the dominant policy in this case which should be accorded especial weight. Policy I.8 allows for new tourist, leisure and recreation development where four specified criteria are specified. The supporting text says, inter alia, that hotels, restaurants and associated conference facilities are prime examples of developments catering for leisure and business tourism that are associated with the County's cultural and natural assets. Since the proposal would contain an extensive range of dedicated training facilities (IR 128) the Secretary of State accepts that it may be regarded as a form of business tourism development, albeit it is not associated with any of the County's cultural and natural assets and that policy I.8 should be taken into account. He does not, however, accord it as much weight as the inspector since he considers that the proposed development should be considered in relation to the development plan as a whole and that there is no reason to give a single policy (I.8) preference over the more numerous policies which do not support the proposal.
As to whether the scheme complies with the criteria in Policy I.8, the Secretary of State acknowledges that it would create jobs, some of which would be likely to meet local needs. Community benefits in terms of shared use of the facilities have to be balanced against the policy considerations relating to their location which is considered in greater detail below in the sections concerning PPGs 13 and 6. Access to the main transport routes and urban areas other than by car relies heavily on the shuttle bus service, the main measure put forward to maximise the use of alternatives to the private car. He agrees with the inspector (IR 134) that the proposal would not undermine the intrinsic value of natural or cultural assets but considers that little weight should be given to the fact that the development would be co-located with the golf club. The Secretary of State considers that the proposal complies to a large extent with this policy.
However, in the light of his conclusion (paragraph 7 above) that the proposal conflicts with a number of policies relating to the location of housing and employment development, and with policies for rural areas, the Secretary of State disagrees with the inspector (136) and concludes that the proposal is contrary to the development plan. He has therefore proceeded to consider whether there are material considerations of sufficient weight as to indicate that he should determine the application other than in accordance with the plan."
It was submitted on behalf of the claimant that the Secretary of State did not explain why the inspector had erred in concluding that policy I.8 was the dominant policy, nor did he explain why polices GD 3, GD 5, RA 1 and RA 3 should be accorded precedence over it. The Secretary of State had failed to address the point that policies GD 3 and GD 5 were applicable "to most new development", not "all new development". Mr Kingston accepted that Cummins was not authority for the proposition that it was always necessary for the decision taker to identify a dominant, or the dominant, policy: (see paragraph 164: "It may be necessary ... to decide which is the dominant policy ... or ... the one to which the greater weight is required to be given"). However, he submitted that the inspector had concluded that it was necessary to identify the dominant policy in the present case and the Secretary of State had not adequately explained why he disagreed. Policy I.8 was user specific by contrast with the general policies GD 3, GD 5, RA 1 and RA 3. Moreover, the Secretary of State would have carefully examined the structure plan to ensure that policy I.8 was not in conflict with national and regional planning guidance: see paragraph 44 of PPG 1.
In my judgment, the claimant's criticisms of paragraphs 7 to 10 of the decision letter are not justified. In identifying policy I.8 as "the dominant policy" the inspector was doing no more than saying, as he did in paragraph 135 of his report, that as a matter of planning judgment he considered that it "should be accorded special weight". He gave no reason for doing so, beyond the fact that Policy I.8 was the one policy in the Structure Plan specifically directed at tourism, leisure and recreational development. Since the weight to be attached to any particular policy in the circumstances of an individual case is pre-eminently a matter of planning judgment for the decision taker, the Secretary of State was entitled to disagree with the inspector for the reasons he gave in paragraph 8 of the decision letter. The Secretary of State's contention that:
"The proposed development should be considered in relation to the development plan as a whole."
is entirely in accordance with the dicta in Cummins and Rochdale above. Given that the Secretary of State had concluded that there were policies which did not support the proposal, he was entitled to say that there was no reason to give a single policy (I.8) precedence over them. All of the policies in the structure plan, not merely policy I.8, would have been examined to ensure that they did not conflict with national guidance.
On behalf of the Secretary of State Mr Brown submitted that there was, in truth, no significant disagreement between the inspector and the Secretary of State as to the extent to which the proposals complied or conflicted with the individual policies in the development plan. Both the inspector and the Secretary of State considered that the proposals conflicted, or at least did not comply, with policies GD 3, GD 5, RA 1 and RA 3. Both the inspector and the Secretary of State considered that the proposals complied, or complied "to a large extent", with policy I.8. Because the inspector considered that policy I.8 should be accorded special weight, he considered that the proposals were generally in accordance with the development plan. Since the Secretary of State did not accord so much weight to policy I.8, he was entitled to disagree with that conclusion.
Despite Mr Kingston's valiant attempts to persuade me to the contrary, I am satisfied that this is fair summary of the position in relation to the first main issue identified in paragraph 6 of the decision letter. Although Mr Kingston laid stress on the fact that the inspector said in paragraph 133 that:
"... at first sight the proposal sits uncomfortably with the Structure Plan strategy and associated policies that seek to focus most new housing and employment development in urban centres." (Emphasis added)
the inspector's report has to be read as a whole and in a common sense, and not a legalistic way. When this is done, it is plain from paragraphs 132 to 136 and 161 that the inspector considered that while the proposals did conflict, or not comply, with policies GD 3 and GD 5 (which were reflected in rural areas in policies RA 1 and RA 3), they did comply with policy I.8, and since policy I.8 should be accorded special weight, the proposals were generally in accordance with the development plan.
Mr Kingston submitted that the Secretary of State's approach "put the development plan at war with itself" since the user specific policy I.8 would be in conflict with the general policies GD 3 and GD 5, RA 1 and RA 3. I do not accept that submission. Although policy I.8 is use specific, it is not location specific. Any site specificity would come in the local plan policies supporting new tourism, leisure and recreational development. Of critical importance for the purposes of the present appeal, policy I.8 is silent as to whether I.8 development should be located within urban or rural areas. There is no necessary conflict between a policy which supports new tourism, leisure and recreational development, and general policies which provide that most new development will be directed towards urban rather than rural areas.
Conventional hotel accommodation would fall within policy I.8. In paragraph 144 the inspector said that such accommodation would be "an appropriate and beneficial town centre use". If a conventional hotel, which was capable of being located within a town centre, was proposed in the countryside there would be no irrationality, or internal policy conflict, if planning permission was to be refused upon the ground that the proposal would be contrary to the locational guidance in policies GD 3, GD 5, RA 1 and RA 3, notwithstanding the general support for such development in policy I.8.
By way of contrast, some kinds of new tourist, leisure and recreational development must, by their very nature, be located in rural rather than urban areas. In such case the decision taker may well decide (but need not necessarily decide) that policy I.8 should be given particular weight. This leads on to the claimant's second ground of challenge.
(2) The need for a rural location: The inspector concluded, and the Secretary of State agreed, that the proposal should be regarded as a form of business tourism development. The claimant contended that a town centre location was appropriate (paragraph 40 IR). The local planning authority agreed (paragraph 51). The county council disagreed, and contended that the proposals could be located in a town centre (paragraph 87). The inspector agreed with the claimant, saying in paragraphs 144 and 145, so far as relevant:
In support of the proposal it is said that PPG 6 does not identify hotels and tourism uses as key town centre uses. While that may be correct, for sustainability reasons it is obviously desirable that major generators of travel are normally located in centres where a choice of means of travel is available. As previously mentioned, the proposal would generate a significant amount of travel by private car and other means. Furthermore, irrespective of the travel implications, I consider conventional hotel accommodation to be an appropriate and beneficial town centre use even if it is not identified as such in PPG 6.
In this instance, however, it seems to me that the primary purpose of a management training centre predicates a rural rather than a town centre location. In particular, perhaps, because of the operational need to offer prospective delegates a quiet and reflective environment in a self-contained rural location removed from competing town centre attractions."
The remainder of paragraph 145 deals with Policy I.8.
That conclusion is reiterated by the inspector in paragraph 162:
"I consider that a rural location is required if the operational needs of a corporate management training centre are to be met. It is not a form of development suited to a town centre location."
The Secretary of State's response to this point is contained in paragraph 15 of the decision letter:
"The Secretary of State agrees with the inspector that conventional hotel accommodation is an appropriate and beneficial town centre use (IR 144). PPG 6 makes clear that town centres are the preferred location for uses which are major generators of travel such as this particular proposal. He does not therefore agree with the inspector that the primary purpose of a management training centre predicates a rural rather than a town centre location (IR 145). There is no basis in national policy for such an assertion and the Secretary of State does not accept that there is any operational need to offer prospective delegates a quiet and reflective environment in a self-contained rural location removed from competing town centre attractions."
The remainder of paragraph 15 deals with the inspector's comments on Structure Plan Policy I.8.
Mr Kingston accepts that the Secretary of State was correct in saying that there is no basis in national policy for an assertion that the primary purpose of a management training centre predicates a rural rather than a town centre location, but he submits that the Secretary of State failed to provide any proper explanation for disagreeing with the inspector's conclusion. The inspector had heard evidence from the claimant's planning witness, Mr Cave, and had visited the claimant's sister operation at Whittlebury Hall in Northamptonshire (paragraph 128).
I do not accept that the Secretary of State's reasoning in paragraph 15 of the decision letter is inadequate. Whether the claimant's desire to offer prospective delegates "a quiet and reflective environment in a self-contained rural location removed from competing town centre attractions" should be regarded as an operational need was pre-eminently a matter of planning judgment on which the Secretary of State was entitled to disagree with his inspector. Although complaint is made as to the adequacy of the Secretary of State's reasoning in paragraph 15 of the decision letter, it will be noted that the inspector's reasoning to the contrary in paragraph 145 of his report is no more extensive. The adequacy of reasons will depend upon the issue that has to be resolved. I accept Mr Brown's submissions that there was no detailed reasoning on this issue with which the Secretary of State was obliged to grapple. As with so many planning judgments, in the final analysis whether one accepted the claimant's evidence that there was an operational need was very much a matter of impression in respect of which the inspector was entitled to say "I agree that there is such a need", and the Secretary of State was entitled to do no more than say, "I do not accept that there is such an operational need."
It will be noted that, although the inspector visited Whittlebury Hall, he did not specifically draw upon his experiences on that visit, or rely upon it, in the context of this particular issue as opposed to his conclusion that the claimant aimed to compete in the corporate training market (see paragraph 128). In his evidence Mr Cave had set out his understanding of customer requirements derived from consultation with the management at Whittlebury Hall and another establishment and letters of support from various companies. In a lengthy proof of evidence, under the heading "needs of training", among very many other points, he said this:
"Intensive training requires an ambience of relative seclusion, and avoidance of distraction and extraneous noise. Dedicated and concentrated training is best achieved by delegates focusing activity on one site with their continuing communication both of a training and social nature, including evening working.
Thus, a countryside location has become a feature of intensive training operations and requirements in the United Kingdom coupled preferably with close proximity to main road, rail and air networks."
He referred to a letter from Marconi.
"This combination in my view substantiates the potential for creating the optimum residential training environment with sustainable travel opportunity. Purley Chase can achieve this."
Later on in his proof he said:
"A countryside ambience as a prerequisite for residential management training can be achieved ..."
It will be seen that this evidence was of a very general nature. I do not say that in any critical sense. The claimant's contention that there was not merely a market demand or opportunity, but an operational need for a rural location, was not capable of "proof" in the same way as a mathematical calculation, or, for example, an analysis of whether a particular junction does or does not comply with relevant highway standards. Mr Cave set out his understanding of the operational needs. The local planning authority and the inspector agreed with him. The county council and the Secretary of State did not. No more extensive reasoning was required on the part of the Secretary of State.
Pausing there, it will be remember that the inspector had concluded that the case was "evenly balanced". While he considered that the proposal "was generally in accord with the development plan", he recognised that "it sits uneasily with some aspects of national policy". In paragraph 164 he set out three main reasons why "the latter concerns should not be overriding". Once the Secretary of State had concluded that the proposals were not generally in accord with the development plan, but were contrary to it, as he was entitled to do (see ground 1) and that a rural location was not required, the inspector's even balance was bound to tip decisively against the grant of planning permission: see, for example, the first of the countervailing points in paragraph 162 of the inspector's report (above).
Mr Kingston pointed out that the inspector had not concluded that the proposals actually conflicted with the national planning policies in PPGs 3, 6, 7 and 13. I omit reference to PPG 21 since neither the Secretary of State nor the inspector attached any particular weight to it: see paragraphs 157 of the inspector's report and 23 of the decision letter. It is true that the inspector did not use the words "conflict with", but he clearly considered that the proposals sat so uneasily with aspects of national policy that this concern would be overriding even though the proposals were generally in accordance with the development plan, if it were not for what he called "the three main reasons" which he identified in paragraph 164 of his report. On the inspector's own approach the proposals would be bound to sit even more uneasily with aspects of national policy if a rural location was not required. This can be seen in the context of the claimant's third and fourth grounds of challenge.
(3) Failure to comply with PPG 6: Under the heading "the sequential approach" the inspector said this in paragraph 146:
"If my conclusion that a town centre location is inappropriate is accepted, to my mind it removes the need to undertake a PPG 6 type sequential approach to site selection. Certainly no such search has been undertaken by the applicant hitherto other than in respect of the staff accommodation block. This is addressed later in the report. If a sequential approach is deemed to be necessary, the failure to undertake such an exercise would weigh heavily against the proposal. That said, in practice it would be very difficult if not impossible to identify sites in any of the relatively small towns in the Borough able to accommodate a development at or approaching the scale of the current proposal. Certainly no sites were identified at the enquiry. For completeness I would add that there is no evidence to suggest that the proposal could be located at a more appropriate rural location elsewhere in the Borough."
Under the heading of "flexibility" the inspector said this in paragraphs 147 and 148:
Under this head it is necessary to examine the possibility that if the proposal were smaller in scale, or disaggregated in some way, it could be accommodated within an existing centre. At the outset it is appropriate to record that a major new high quality training centre must be by definition significant in size. A small scale operation would be unable to offer the necessary range of training and other supporting facilities. I note also that the size, format and design of the proposal draws upon the experience gained in recent years from the operation of Whittlebury Hall.
The application itself consists of several elements, hotel accommodate, dedicated training rooms, leisure facilities, catering facilities and so on. These are said to form an integral package. Taking the main elements in turn, firstly I see no merit in seeking to accommodate delegates at a number of separate sites. This would be impracticable and inevitably create a need for additional travel between them. Likewise I consider that catering, training and leisure facilities all form an integral part of this type of development. Without them the development would not succeed operationally or commercially. Even so, the proposed leisure facilities are very extensive and appear to me to have been designed more with weekend visitors than training delegates in mind. Arguably a smaller leisure facility could satisfy delegate needs though this does not seem to be as overriding point given the scale of the complex as a whole. I am also conscious that the development would compete in a very competitive market where client expectations are high and constantly rising. Certainly I see no merit in any attempt to disengage the leisure facilities and locate them in one of the nearby towns."
It will be noted that thus far the inspector had not considered disaggregation of the staff accommodation. He dealt with that issue when considering the relationship of the proposals to PPG 3 in paragraphs 155 and 156 of his report:
Of course the accommodation block would be located in a rural area -- not a preferred location for most new housing in terms of the search sequence set out in paragraph 30 of PPG 3. Presumably with this uppermost in mind, the applicant was asked to consider a number of sites in Atherstone having the potential to accommodate residential development. The exercise undertaken by the applicant concluded that none of the sites would be suitable for a staff accommodation block of the required size. This was not challenged at the enquiry. On the limited evidence available, I see no reason to disagree.
Having said that, if the staff accommodation provision was reduced in size or dispersed over more than one site, it might be possible to accommodate some members of staff in or close to Atherstone town centre. That arrangement would provide improved accessibility to many of the town's services and facilities. It is not an exercise that has been attempted hitherto, so far as I am aware. While the provision of staff accommodation in a different form/location might offer some benefits, the operational advantages of having a significant proportion of the workforce living on-site would be lost. A net overall increase in travel demand might also occur. It should also be borne in mind that the accommodation is related to a specific rural development; it would not be available on the general housing market. With the above in mind and given the absence of any sequentially preferable sites in any event, on balance I am not convinced that any conflict with guidance in PPG 3 is an overriding concern."
In the final sentence of paragraph 162 the inspector had noted that the location of the staff accommodation did not reflect the search sequence in PPG 3, but that no sequentially preferable site had been identified.
The Secretary of State responded to these matters in paragraphs 16 to 20 of the decision letter. Paragraph 19, which deals with co-location with the golf course, is not relevant for present purposes:
Since the Secretary of State does not accept that a town centre location is inappropriate, he also does not agree that the need to undertake a sequential approach to site selection is removed. He therefore takes the view that the failure to undertake such an exercise weighs heavily against the proposal (IR 146). No alternative sites for all or part of the development have been identified in nearby towns, but the applicants have argued that there is an absence of dedicated training facilities serving West Midlands companies (IR 20). He does not think it has been demonstrated that there is a need for the proposed facility in this particular location, notwithstanding that the site is within the North Warwickshire Coalfield area which has objective 2 status.
Moreover, since the proposal includes a leisure centre of 4000 square metres, the Secretary of State would have expected the need for this element of the proposal to have been demonstrated, as required by the McNulty statement. On the basis of the evidence before him, he is not satisfied that such a need exists for a leisure centre on the scale proposed, especially since it appears to have been designed more with weekend visitors in mind (IR 148).
In terms of flexibility, the Secretary of State accepts that all of the elements contained with the proposal are related to the single purpose of a management training centre and he accepts that there is little merit in seeking to disengage some of the elements, thereby creating a need for additional travel between them (IR 148). At the same time, however, he considers that a robust application of the sequential approach should have examined the possibility of some disaggregation, for example, of the staff accommodation.
...
On this issue, the Secretary of State concludes that the proposal conflicts with PPG 6 because of its location outside a town centre, because no need for the leisure facilities has been demonstrated, and because a sequential approach has not been undertaken."
Mr Kingston submitted that the Secretary of State's approach to the proposed staff accommodation was both irrational and erroneous. Irrational because if the Secretary of State wished to reduce the need to travel by car disaggregating staff accommodation and locating it off site would lead to a need for more car travel and erroneous because the Secretary of State failed to appreciate that there had been a search for alternative sites for the staff block: see paragraph 155 of the inspector's report. The Secretary of State had not responded to paragraphs 155 and 156 of the inspector's report and had apparently overlooked them.
If there was an operational need for development to be in a rural area, then moving the staff accommodation to an urban site might well result in a net overall increase in travel demand: see paragraph 156. But the Secretary of State did not accept this underlying premise. In paragraph 22 of the decision letter the Secretary of State, when dealing with "conflict or otherwise with PPG 3", said:
"The Secretary of State considers that the unsuitability of the site for the proposal in general means that there is no need to consider the suitability of it for the housing element in terms of PPG 3."
It is, therefore, possible that the Secretary of State overlooked the fact that there had been a search for alternative sites for the staff block which the inspector had dealt with in that section of his report which was concerned with the relationship of the proposals to PPG 3. However, as the inspector pointed out in paragraph 156, there had been no attempt to consider whether the staff accommodation might be reduced in size or dispersed over more than one site. The inspector proceeded on the basis that "the accommodation is related to a specific rural development". If, as was the case in the view of the Secretary of State, the development did not need to be in a rural area, then a search for urban sites for the staff accommodation, not necessarily in one block, would become necessary if PPG 6 was to be complied with. If the final sentence of paragraph 18 of the decision letter had referred to the lack of a "thorough" examination of a possibility of some disaggregation of the staff accommodation in PPG 6 terms, then the claimant could have had no complaint. As it is, the complaint misses the essential point in relation to PPG 6. On the inspector's own approach if a town centre site was not appropriate, a sequential approach was necessary and the claimant's failure to undertake such an exercise "would weigh heavily against the proposal" in terms of the guidance in PPG 6 (paragraph 146 IR). Thus, regardless of the last sentence in paragraph 18 of the decision letter, the Secretary of State was entitled to conclude in paragraph 20 of the decision letter that the proposals conflicted with PPG 6, because a sequential approach had not been undertaken.
(4) The need for leisure facilities: The relevant paragraphs of the inspector's report and the decision letter are set out above. It is submitted on behalf of the claimant that the Secretary of State does not explain why he disagreed with the inspector. I accept Mr Brown's submission that there is, in truth, no disagreement. The leisure facilities were very extensive. Having said that catering, training and leisure facility formed an integral part of the development, without which it would not succeed commercially or operationally (paragraph 148), the inspector noted that "arguably a smaller leisure facility could satisfy delegate needs". However, he did not consider that this was "an overriding point given the scale of the complex as a whole ". On the basis of these conclusions the Secretary of State was entitled to say that he was not satisfied that a need existed for a such a large leisure centre. Since he did not accept the inspector's view that a town centre site for the development would be inappropriate, he was entitled to take a more serious view of the failure to demonstrate the need for such an a leisure centre of 4,000 square metres in a location outside a town centre.
(5) Conflict with PPG 13, car parking: The Secretary of State dealt with PPG 13 in paragraphs 11 to 14 of the decision letter:
"As noted by the inspector, (IR 138) paragraph 37 in PPG 13 sets out specific guidance in respect of leisure, tourism and recreation and says that such developments which generate large amounts of travel should accord with the advice contained in the guidance. In paragraph 6 of the PPG, local authorities are advised to focus major generators of travel demand in city, town and district centres and near to major public transport interchanges; to ensure that development comprising jobs, shopping, leisure and services offer a realistic choice of access by public transport, walking and cycling; and in rural areas to locate most development for housing, jobs, shopping, leisure and services in local service centres which are designated in the development plan to act as focal points for housing, transport and other services, and encourage better transport provision in the countryside. The Secretary of State considers that the proposal, being located on a site in a rural area not designated as a focal point for development, conflicts with PPG 13 in terms of its location outside a built-up area.
The Secretary of State recognises that the site lies on a local bus route, but observes that the service is relatively infrequent. He appreciates that the proposed shuttle bus service would enable delegates travelling by rail or air to travel to and from the site, and he agrees with the inspector (IR 139) that it would be likely that to be a far more attractive mode of travel for staff than a conventional bus service. He agrees, however, with the inspector's concerns regarding the effectiveness of the shuttle service as a means of providing a reliable journey to work service as well as on-demand service for delegates. Although some facilities are situated within easy walking distance and Atherstone and Nuneaton are within reasonable cycle distance, the Secretary of State agrees with the inspector that journeys to either town by staff or delegates are far more likely to be made by private car or shuttle bus (1R 140). Whilst he recognises that some effort has been made to reduce the number of trips to and from the site by private car, he considers that because of the remote location of the site, the development would be a significant generator of travel and that much of that travel would be likely to be by car.
On the question of parking, the Secretary of State has had regard to the breakdown in use of the 400 spaces proposed (IR 37). He notes that this includes nearly one space per bedroom which he does find consistent with the evidence submitted in connection with the travel plan that 25 per cent of delegates would car share and 10 per cent would use the shuttle bus. He takes the view, that with parking on site to the extent proposed, there will be little incentive for delegates or staff to use the shuttle bus. It seems to the Secretary of State that the level of parking proposed would encourage use of the car to travel to the site, contrary to the guidance in PPG 13.
The Secretary of State agrees with the inspector, for the reasons given in IR 142, that the proposal would not have adverse effects on highway safety on the local road network. However, he considers that the proposal would conflict with the objectives of PPG 13 because of its remote location, poorly served by public transport. Although the travel plan and shuttle bus service may mitigate some of the transport problems, there may be little incentive to travel other than by car given the amount of parking provision proposed to be made on site."
In his report the inspector acknowledged that "the application promotes at a rural location a large scale development likely to generate a large amount of travel" (paragraph 162), but he considered that the measures proposed by the claimant in its Green Travel Plan, including a shuttle bus service, "would go a long way towards minimising the need to travel particularly by private car" (IR 141).
The inspector dealt with the relationship of the proposals to PPG 13 in paragraphs 138 to 143 of his report. I do not propose to set out those paragraphs in extenso. It is sufficient to note that having dealt with the issue in some detail, the inspector did not say in terms whether in his planning judgment the proposal did or did not comply with PPG 13. Reading the inspector's report as a whole, and in particular his overall conclusions (see above), one is left with the clear impression that the inspector recognised that there was indeed a conflict, in particular with the locational guidance in PPG 13, but he felt that the seriousness of that conflict was much mitigated by the measures proposed by the claimant: the Green Travel Plan and the shuttle bus. Leaving aside for the moment two specific criticisms of certain passages in paragraphs 12 and 13 of the decision letter, it can be seen that the difference between the inspector and the Secretary of State on this issue is very much one of emphasis. The Secretary of State concluded that there was conflict with PPG 13, because "the proposal would conflict with the objectives of PPG 13 because of its remote location, poorly served by public transport". Plainly the force of that criticism would have been much reduced if the Secretary of State had agreed with the inspector's view that there was an operational need for a rural location, but he did not. The Secretary of State acknowledges that mitigation measures had been proposed by the claimant, but felt that they were not sufficient to overcome his objection in principle to a proposal which:
"conflicts with PPG 13 in terms of its location outside a built-up area."
He was entitled so to conclude as a matter of planning judgment.
The two specific criticisms are as follows. It was submitted that the Secretary of State erred in agreeing with the inspector's concerns regarding the effectiveness of the shuttle bus service as a means of providing a reliable journey to work service as well as an on demand service for delegates. The inspector had said in paragraph 139 of his report:
"The availability of this service, in concert with the incentives anticipated in the Green Travel Plan, would undoubtedly encourage many delegates to travel to the site by means other than private car. The shuttle bus service could also be available to staff living in nearby towns. Being free of charge and able to respond to irregular working hours, in my view it would be a popular alternative to the use of private cars for journeys to and from work. Certainly the flexibility and convenience offered by a dedicated shuttle bus suggest to me that it would be a far more attractive mode of travel for staff than a conventional bus service. My main concern regarding the effectiveness of the shuttle service is that its very success could mean that it would be difficult to provide both a reliable journey to work service for staff as well as a responsive on-demand service for delegates. This is clearly a matter that would need to be carefully monitored."
The section 106 agreement provided for monitoring of this among other matters. Thus, it was submitted the inspector's concern was that the shuttle bus might be a victim of its own success and this would have to be carefully watched. In my judgment, the Secretary of State was entitled to share the inspector's concern. In an ideal world he would have referred to the proposed monitoring in the section 106 agreement, but his failure to do so cannot sensibly be described as a serious omission from the decision letter. Monitoring cannot necessarily be regarded as a panacea if a concern is identified.
The second specific criticism related to the Secretary of State's comments in relation to car parking provision. It was submitted that since there would be 200 staff, 150 of whom would be on site, albeit not all of them at the same time, it was irrational of the Secretary of State to say in paragraph 13 of the decision letter that there would be little incentive for staff to used the shuttle bus, because, having regard to the breakdown of the 400 spaces proposed by the claimant in paragraph 37 of the inspector's report, there would be only 35 spaces for staff.
In paragraph 37 of the inspector's report it had been explained that the figure of 400 spaces was broken down as follows:
"Of these 35 are for staff, 150 for the hotel rooms, 70 for non-residential training, 120 for users of the health and leisure facilities and 25 for the restaurant."
In my judgment, the Secretary of State was entitled to find that there was a lack of consistency between the car parking provision proposed for delegates and the evidence in the Green Travel Plan as to their anticipated mode of travel to and from the site. The Secretary of State did not suggest that there was any such numerical inconsistency in relation to the figures given for staff travel. His point in the last two sentences in paragraph 13 of the decision letter was a more general one, with 400 car parking spaces on site there would be little incentive for delegates or staff to use the shuttle bus and the level of car parking would encourage the use of car travel to the site. Whether delegates or staff would be likely to use the shuttle bus or private cars to travel to and from this rural site with 400 car parking spaces upon it, was very much a matter of planning judgment on which the Secretary of State was entitled to form his own view. No further explanation was required. It will be noted that the inspector had merely concluded that the figure of 400 spaces:
"... is derived from a careful assessment of the realistic parking needs of the individual elements of the proposal. On balance the proposed level of provision seems reasonable in the light of current guidance, though it is difficult to gauge this with any degree of confidence. In any event, there is no compelling evidence to hand suggesting that provision is excessive in the light of PPG 13."
There was no detailed calculation which called for a more extensive explanation from the Secretary of State.
Mr Kingston submitted that if the Secretary of State was concerned about the amount of car parking, then that was a matter that could and should have been addressed by way of condition. I do not agree. The inspector himself said that the figure had been derived from an assessment of the parking needs of the proposal. There was simply no information before the Secretary of State which would have enabled him to impose a condition limiting the car parking provision to a lesser number. The number of car parking spaces was at least in part a function of the site's location in a rural rather than an urban area. That was the fundamental problem in the Secretary of State's view and it simply could not have been overcome by reducing the number of car parking spaces.
(6) The fallback position: It was submitted that the Secretary of State had misunderstood the fallback position and had not appreciated that the development permitted in 1996 had included a substantial leisure centre, a wide range of outdoor leisure activities and 15 holiday chalets, which would generate a similar number of car journeys as the application. That submission is untenable. In paragraph 24 of the decision letter the Secretary of State said this under the heading "other material considerations":
"The inspector has considered two main issues in his report, namely the extant permission for a 40 bed hotel, and the fact that the land is previously developed land. On the former, the Secretary of State does not agree with the inspector that the fallback position, i.e. the extant permission for a hotel, would be so disadvantageous in terms of sustainability benefits (IR 158) as to justify allowing development on the scale proposed. The fallback proposal is considerably smaller (IR 12, 75) in terms of area, the amount of built development and car parking."
In paragraph 158 the inspector had said:
"Under this head it is relevant to record that the application site benefits from an extant planning permission for a 40 bed hotel, indoor leisure centre and 15 holiday lodges. Though smaller in scale than the current proposal, it would be a significant development nonetheless and would disperse built development over a wide area. Furthermore it does not offer the package of sustainability measures that are an integral part of the current application."
Paragraph 12 of the inspector's report contains the inspector's description of the proposed development, and paragraph 75 records part of the county council's case:
"The site has been the subject of major development proposals in the past. These include ... a proposal for a 46 bedroom hotel, leisure facilities, 15 chalets and outdoor recreation facilities leisure. The consent granted for the latter proposal in 1996 is extant. While this represents the 'fallback' position, in the county council's view the 1996 scheme is preferable to the current application being smaller in area, the amount of built development and car parking. It also allowed for planting between the buildings and had a better orientation."
It would seem that the reference to a 46 bedroomed hotel is a typographical error and the county council was referring to the 1996 permission for a 40 bedroomed hotel.
The Secretary of State did not disagree with the inspector's conclusion that the fallback permission would generate "a comparable level of travel demands": see paragraph 164. He merely agreed with this particular aspect of the county council's case as he was entitled to do.
Overall conclusions: For these reasons the application must be dismissed. For the sake of completeness, I should add that, even if it was accepted that the Secretary of State unfairly criticised the claimant's failure to examine, as opposed to examine thoroughly, the possibility of disaggregating the staff accommodation and locating it in an urban area, or areas, and that he should have mentioned the proposal to monitor the operation of inter alia the shuttle bus, and should have provided more of an explanation for his conclusion that there would be little incentive for staff to use the bus, these criticisms would be relatively minor blemishes in a very full decision letter and they could not conceivably have made any difference to the outcome of the appeal. Having concluded that the proposals conflicted with the development plan and with PPGs 6, 7 and 13 (see the first half and the final sentence of paragraph 25 of the decision letter), the Secretary of State made a number of further criticisms of the proposals:
"There is further conflict with PPG 13."
"There is additional conflict with PPG 6."
To adopt a somewhat brutal analogy, even if these additional criticisms were unfair and/or inaccurate, they would be the planning equivalent of kicking a man when he was down. However unjustified the kicks, the application was by that stage well and truly down, given the Secretary of State's approach to the matters raised in the first two grounds of appeal.
MR BROWN: My Lord, I am grateful I would ask, firstly, for an order that the application be dismissed in accordance with your Lordship's conclusions. Secondly, my Lord, I have an application for the Secretary of State's costs. My Lord, there is an amended costs schedule in the light of the fact that it was not possible to deal with matters, including judgment, on Tuesday. Your Lordship will see that the amended amount is £7,546.50. Your Honour may note that that has gone up rather from what was asked previously and rather more than you might expect simply for the costs of attending judgment. My Lord, the reason for that is that my instructing solicitor very modestly overlooked the costs of his own attendance on Tuesday, so they were not in the original costs schedule, and it is the consequence of adding in the figure for that, plus the costs of being here today which brings us to the figure of £7,546.50.
MR JUSTICE SULLIVAN: Can we just see what Miss Grekos says about the principle and the detail.
MISS GREKOS: Costs are agreed. There is no objection there.
MR JUSTICE SULLIVAN: Thank you very much. Then the application is dismissed, the claimant is to pay the first defendant's costs, those costs are to be summarily assessed, in the sum of £7,546.50. Any other applications? No. Thank you.