Morris, R (on the application of) v Wealden District Council

MR JUSTICE COLLINS: This is a claim which seeks to quash a planning permission granted by the Defendant to the Interested Parties, particularly Wadhurst Tennis Club, to enable a development to take place which consisted of the erection of nine poles and floodlighting to enable tennis to be played on two particular courts out of four during the hours of darkness. The use of the floodlights was limited by a condition to October until April and then only until 9.00 pm in the evening and from 8.00 am in the morning.

This, in fact, is I think the fourth application that has been made to erect floodlighting at the tennis club. The first was in August 2005. That was turned down by the Defendant.

In March 2008, a further application was made. This was, despite a recommendation of refusal by the officers, allowed by the committee of the Council. That was challenged by judicial review. It was accepted by the Defendant that the decision could not be sustained and so the decision was quashed by consent in August 2009.

The application was renewed in 2010. Again, for the same reasons, namely that it would have significant and unjustified harm to the environment, the officers recommended refusal, but the committee again granted it. This again was challenged by judicial review. Mr Rabinder Singh QC, as he then was, sitting as a Deputy Judge, quashed the permission on the basis that there had been a failure to consider whether an EIA statement was needed. In Mr Singh's view, it was needed and at least a screening opinion should have been obtained. There was also a seperate issue in relation to one of the conditions, but that is not material.

Again, the application was renewed in June 2013. Again, the officers recommended refusal. There had been an EIA screening opinion, but this indicated that in terms of the EIA directive, it was not a case in which significant harm to the environment could have been established and, therefore, there was no need for more than a screening opinion. That was a ground which was originally pursued in this claim, but has not been pursued before me. I say that was a ground. I mean that it was wrong not to require a full EIA. The committee, as I say, decided to grant permission. The decision in question was issued on 24 December 2013, hence these proceedings.

Permission was originally refused on the papers by Cranston J, but, as it happens, I granted permission on a renewed oral application. I also gave permission to add a ground based upon section 85 of the Countryside and Rights of Way Act 2000, which I will come to in due course.

The issue essentially here turns on whether the decision of the committee that the attraction of the floodlights to those who wished to play tennis during the hours of darkness and in the winter when otherwise it would be impossible was such, in terms of recreational facilities, as to justify a grant of permission, notwithstanding the harm that would be done by the proposal in question.

The harm in question depends upon the fact that this particular tennis club is in an Area of Outstanding Natural Beauty. In fact, it is, I gather, at the top of a ridge in the particular area. So, as is perhaps obvious, the effect of floodlighting is the more visible from a greater distance. In addition, the Claimant lives just over the road from the tennis club. In fact, I think her's is the nearest house to the courts in question. Because she is at a lower level, and, indeed, all the houses which abut are at a lower level, the effect of the floodlighting will be that much greater, despite the screening that has been relied on in justifying the proposal.

As I say, there is no question -- and Mr Reed does not seek to argue the contrary -- that there is some harm. It is common ground that the officers' report fairly sets out all the relevant factors which the committee had to take into account.

It is perhaps convenient to refer first to the relevant planning policies. These are to be found initially in an 1998 policy which, it is accepted, is recognised as still applying. Thus, it is not to be regarded as a policy which is out of date. There is, in addition, an update which contains other policies which Mr Reed prays in aid.

The 1998 policy which is mainly in play is that under the heading "Environment". It is, in my view, important to bear in mind precisely what is the context of that particular policy. It refers, perhaps somewhat prophetically, to the need for sustainable development. But this is in the context, as I say, that the strategy is that it is important to protect areas of high landscape quality, notably Areas of Outstanding Natural Beauty. It is said the plan aims to facilitate change in a manner that ensures that existing qualities of the natural environment are respected and maintained.

Sustainable development is defined as that which provides for the needs of the future, including improvement as to quality of life in a way that minimises damage to local as well as local environment. That is not particularly prophetic because it stems from, I think, a UN indication relating to climate change and a strategy which should be adopted in all countries. It is to be noted that it is said in the plan:

As I read that, and it is not the clearest of language, the carrying capacity of supporting ecosystems is a reference to the need for protection of the environment in whatever form it exists in a particular area. When I say whatever form it exists, I am referring, for example, to Areas of Outstanding Natural Beauty, but also there were special considerations in the area covered by the plan to the Ashdown Forest and the Low Weald, which also carried their special considerations. EN1 is the general approach. It states:

It seems to me to be self-evident that in context a reference to "the principles contained in government guidance" is a reference to the principles relating to the protection of the environment, because that is what this particular chapter of the plan is all about.

That is made clear beyond question by the provisions of EN6, which is the most material provision, which reads:

None of the specific matters are especially material in relation to this particular site. Nonetheless, the approach must be to allow only development within EN6 and the environmental policies if it conserves or enhances the natural beauty and character of the landscape.

So far as that is concerned, there is no question that this particular proposal neither conserves nor enhances. Again, Mr Reed recognises that it does result in harm to the environment, albeit it cannot be said that the harm to the environment itself is particularly great. Indeed, it is probably to be regarded as relatively slight.

However, the officers' view was that:

It is perhaps to be noted what the view was in relation to harm. I say what the view was because the Council obtained an independent report from a firm Capita Science which was designed to identify the harm that would result, if any, from the floodlighting.

What, as the officers' report indicates, was the indication from the report was as follows:

That is no doubt material, but as the officers point out, and, in my view, inevitably correctly point out, since much of the screening which is said to protect the residential properties results from deciduous bushes, in the winter when the floodlights would be on clearly that particular protection is not very efficient because the leaves would not be there. Accordingly, there would certainly be a lot more than glimpsed views only.

So far as the impact on the AONB is concerned, the officers refer to the NPPF guidance which states that the planning system should protect and enhance valued landscapes and that:

That reflects the officers' concerns. The conclusion reached was that the officers were firmly of the view that the importance of protecting the AONB and the amenities of local residents overrode other recreational benefits within the application, however laudable.

They also indicated that they had revisited the site recently and viewed the tennis courts from various vantage points, including bedrooms within a couple of dwellings to the east/north east of the site and from the adjacent fields.

I have referred to what I have indicated is, in my judgment, the most significant policy that applied in this case, namely EN6. However, Mr Reed has submitted that there were other policies, which are clearly referred to in the officers' report and which were before the committee, which are capable of pointing in a slightly different direction.

He relies on EN1 in its reference to having regard to the principles contained in government guidance and, albeit this was back in 1998, the government guidance is now contained in the NPPF. He submits that the effect of that is to import into the policy the NPPF and all the sustainable development policies that are referred to in the NPPF. It is to be borne in mind that, according to the NPPF, what is sustainable development is to be gleaned from reading 200 paragraphs in the NPPF itself. However, as I have already indicated, I do not find that submission acceptable because it is clear, in my view, that EN1 and indeed the whole of EN was concerned with protection of the environment and not with whether other policies were policies which could be taken into account. Indeed, as Mr Perreira submitted, it would be perhaps somewhat strange if, by that means, the whole of the NPPF were incorporated as policy. It is, of course, a material consideration which has to be properly taken into account when any particular development is considered.

Furthermore, reliance is placed on two more recent policies in the plan which reflects and takes account of the NPPF. The first is what is WCS14, which concerns sustainable development and states:

That reflects what is said in the introduction to the NPPF. But, again, in context, it is clearly recognising that that is a general approach, but is not to be taken as ousting the clear indication that in AONBs and, in particular, in the High Weald, as EN6 indicates, the primary consideration must be that a development which does not conserve or enhance the AONB should not be acceptable.

The other policy that is relied on is SPO11, which states:

That is obviously largely concerned with provision of space, that is to say areas which can be used for leisure or recreational facilities, not with such as provision of floodlighting. However, it is said that increased accessibility can improve human health. It may be thought that it is possible to argue that floodlighting during hours of darkness does increase accessibility to tennis playing, which itself may have an impact on human health.

It is to be noted that these courts, although one of them at the moment is accessible to the public on payment of a single fee are not going to be, when floodlit or if floodlit, such as here that accessibility. One would have to be a member of the club in order to make use of the facility.

What is said and, indeed, one of the grounds relied on by those who have supported this application, is that without it, the attraction in the club will be the less. Those who join it and those who thus contribute to the cost of keeping it will or may fall away. It is an advantage generally, it is said, in that it is a greater attraction to those who wish to play tennis.

While I see the force in that, it does not necessarily outweigh the importance of the protection of the environment and, of course, not only the protection of the environment, but the avoidance of harm to adjoining occupiers. There is no question, as I say, but that there is some harm resulting from the floodlighting.

The argument put forward by Mr Reed was that looking at the policies as a whole, the importation of the NPPF and the approach that requires sustainable development to be approved if possible means that, notwithstanding EN6, the approval was in accordance with the plan. He submits that it is wrong to look at a single policy in isolation. It is necessary always to look at the policies as a whole because some may point in different directions.

He relies in particular upon the observations of Sullivan J, as he then was, in Regina v Rochdale Metropolitan Borough Council [2001] 81 P & CR 27 and what the learned judge there had said, having referred to the relevant plan policies. I should perhaps simply for the sake of completeness, refer to those. They are well-known.

S.38(6) of the Planning and Compulsory Purchase Act 2004 states that if regard is to be had to the development plan for the purpose of any determination to be made under the Planning Act, the determination must be made in accordance with the plan, unless material considerations indicate otherwise. That applies clearly to this case.

In addition, reference is made to S.85, as I have already stated, of the Countryside and Rights of Way Act 2000, which provides by sub-section (1):

Since the NPPF is a material consideration, albeit, in my view, not incorporated into the planning policies as such, it is to be noted that in paragraph 115 it states:

In that context, Sullivan J -- albeit considering the predecessor to 38(6) which was then S.54A of the Town and Country Planning Act 1990 -- said this, so far as material. I quote from paragraph 46:

He went on in paragraph 49 to state that he regarded as untenable the proposition that if there was a breach of any one policy of the development plan, the proposed development could not be said to be in accordance with the plan. This was because of the conflicting interests that might arise. He indicated, and it is clearly is right, that it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan.

However, Mr Reed has not sought to rely on any policy other than the ones to which I have referred. I have already indicated why, in my judgment, those are not properly to be regarded as policies which in any way go against the policy contained in EN6.

Of course, it is open always to a planning authority to grant permission notwithstanding it is in breach of plans because there may be material considerations that point in another direction. So one has to have regard to what are the material considerations here.

Those are to be found essentially in paragraph 73 of the NPPF which deals with recreational facilities. What it states is:

There is no doubt that the provision of recreational facilities and the improvement of access to such facilities is properly to be taken into account as a material consideration. But it must be recognised that it is only a material consideration and it can only indicate otherwise within the meaning of 38(6) if it carries sufficient weight in going against the very positive provision in EN6.

Mr Perreira has attacked the reasons which have been given, not in the grant of permission itself, they are not contained in the written decision, but in the record of the committee's consideration. The need to give reasons for the grant of permission have been abolished by Parliament. Accordingly, there is no requirement now for any reasons to be given.

It seems to me that it would be quite wrong for judge-made law to indicate in this field that, notwithstanding Parliament's removal of the obligation to give reasons, still common law so requires. It seems to me that it must be recognised now that no reasons need be given. Reasons, of course, have to be given for the imposition of any particular conditions, but that is for an entirely purpose.

However, the committee was advised, and sensibly advised, that since it was going to reach a decision which was contrary to the officers' recommendations, it would be desirable to give reasons so that it could be known why they had decided as they did and possibly with a view to trying to avoid yet another claim for judicial review. The reasons given are these:

Mr Perreira submits that that is simply not good enough, because it does not indicate the Council has given the proper weight to the development plan policy, which effectively forbids a development such as this which does not concern or enhance the AONB. It should have been recognised that the NPPF did not, in those circumstances, allow for what is described as a balance of considerations.

What it did, clearly, was to indicate that the committee was entitled to have regard to the recreational aspect, but only if they took the view that it outweighed the planning policy. There is nothing in the reasons given which indicates that the committee appreciated the need for that outweighing since the prohibition was the primary consideration.

There was, in addition, a separate reasons challenge that Mr Perreira maintained, but I indicated, and in the end I think he recognised, that a reasons challenge would not stand on it own, but it was a matter that could be prayed in aid, as it has been, in indicating that the committee did not adopt a correct approach in recognising that what I will call the policy prohibiting such development should prevail, unless it was apparent that the material consideration of recreational facility effectively outweighed it.

Of course, there is no doubt an advantage in attracting people to be able to play tennis in winter months when otherwise they would not be able to, but it is a relatively minor advantage when the existence of the tennis courts as a whole is there as the recreational facility. However, whether it is major or minor, it is a matter, no doubt, which the planning committee could properly consider, provided, as I say, they approached it on the correct basis.

So far as the great weight to be attached to protection of the environment in AONBs referred to in paragraph 115 is concerned, reference has been made to observations of Sir David Keene in East Northamptonshire District Council v the Secretary of State for Communities and Local Government [2014] 1 P & CR 22. That was a decision which had to have regard to paragraph 115 in the framework and the requirement of giving a great weight in that. In paragraph 18, Sir David said this:

In so far as paragraph 115 of the NPPF requires a great weight to be attached to considerations, no doubt circumstances of an individual case will indeed be highly material to considering whether that is outweighed by the advantages of any particular development. Obviously, the impact of a development on the AONB is a relevant consideration.

I think all that Sir David was indicating was that when one looked at "great" in that context, one had to recognise that it, in an individual case, would have to be construed by considering what harm was occasioned by any particular proposal. If, for example, the harm was trivial, then the great weight to be attached could more easily be outweighed by any advantages that accrued from the development in question. In my view, that really is all that he was saying.

When one reads together EN6, the need to apply great weight, the provisions of S.85 of the 2000 Act and the provisions of S.38(6) insofar as they underline the importance of the relevant policies, and when one sees what those policies are, then it seems to me that one has to recognise that it would take a considerable degree of advantage to outweigh those.

Of course, it would be possible. If the committee had, as a matter of judgment, recognised that they were going against the policies in the plan, it may be, and Mr Perreira was not concerned to argue the contrary, that a permission could have been granted. But all considerations relevant to that exercise would have to have been undertaken and it would have to have been clear that they were undertaken in reaching a decision.

In all the circumstances, for the reasons I have given, and I recognise they do not necessarily cover everything that was put before me, but I hope what matters in the submissions, I am afraid that the Council have, for the third time, got it wrong.

MR PERREIRA: My Lord, I do have an application for our costs, but I have an apology because we have only just got together the costs schedule, so the Council has not seen it.

MR JUSTICE COLLINS: This is an Aarhus.

MR PERREIRA: It is, and there is a protect --

MR JUSTICE COLLINS: So it is £15,000 is it not, that is the max?

MR REED: My Lord, it was set at £4,000 for the --

MR JUSTICE COLLINS: Yes, but your maximum --

MR REED: The maximum was £35,000.

MR JUSTICE COLLINS: £35,000 yes.

MR PERREIRA: The schedule comes to just over £37,000.

MR JUSTICE COLLINS: You will not get more than £35,000.

MR PERREIRA: I will not get more than £35,000 but I need to hand this to my learned friend.

MR JUSTICE COLLINS: I think the sensible thing, because it is not fair to expect Mr Reed --

MR PERREIRA: Yes.

MR JUSTICE COLLINS: -- and those behind him to do this on the hoof, is for me to say that costs to be agreed or subject to a detailed assessment if not agreed, would it not?

MR PERREIRA: We are content with that.

MR JUSTICE COLLINS: Yes, bearing in mind Aarhus.

MR REED: Yes. Thank you, my Lord.

MR PERREIRA: Thank you.

MR JUSTICE COLLINS: All right. Any --

MR REED: No, my Lord, save for that I expect Mr Perreira would like to ask for an order quashing the decision, but I --

MR JUSTICE COLLINS: Well, I have said that already.

MR REED: Very well.

MR JUSTICE COLLINS: It serves to quash the decision.

Even if you applied, I would not grant you leave to appeal. If you want to go further, you will to go to the --

MR REED: My Lord, yes.

MR JUSTICE COLLINS: I do not think there is any reason why. This is a case that turns on its own facts.

MR REED: My Lord, yes. I have not taken instructions on that point --

MR JUSTICE COLLINS: No, but --

MR REED: -- my Lord, but thank you very much.

MR JUSTICE COLLINS: Take it as if you were to apply, I would refuse permission.

MR REED: My Lord, in those circumstances, can I formally make that application?

MR JUSTICE COLLINS: By all means. By all means. You will get that out of the way.

MR REED: Thank you, my Lord.

MR JUSTICE COLLINS: Yes, all right. Thank you both for your assistance.