Law v Essex County Council

This is a rolled up hearing for judicial review of a planning permission granted on 26 September 2014 by the defendant for the construction of a two-storey two-form entry primary school and single-storey early years centre with associated hard and soft play space, vehicular accesses, parking and pick up/drop off areas, hard and soft landscaping, drainage, lighting and fencing on land to the north of Apprentice Drive, New Braiswick Park, Colchester, Essex.

The claimant is a member of the Fernlea Residents’ Action Group (FRAG) and resides at a property adjacent to the development site.

The defendant is the Local Authority for the area in which the development site is situated. It is both the Local Education Authority and the Local Planning Authority for the application. As education authority it had purchased the application site in 2012 and sought and obtained funding from the Department of Education for the construction of educational facilities.

Pre-application consultation was held in January and March 2014. The application was submitted on 5 June 2014. The application was controversial. After full consultation the application was reported to committee on 26 September 2014.

On 25 September 2014 FRAG wrote to the defendant through their solicitors, Holmes & Hills, making further representations as to why the planning permission should not be granted. Their letter contained reference to Policy ENV1 and asked that the application be withdrawn from members or that the flaws in the officer report be corrected. Failing that judicial review proceedings were a possibility.

In response the planning officer prepared an addendum report which addressed, amongst other matters, issues which had been raised by FRAG. At the committee meeting on 26 September the planning officer made an oral presentation to the members, there were representations from various groups, including FRAG, and questions were put by members to officers.

The planning committee voted ten in favour, none against but with one abstention to grant planning permission.

On 6 November 2014 the current claim was issued. No pre-action protocol letter had been sent and no communication had taken place between the solicitors acting for the claimant and the defendant.

On 18 December 2014 Collins J ordered a rolled-up hearing, expedition and left the issue of delay in commencing the proceedings open.

Originally there were five grounds of challenge. Helpfully, Mr Green, who appeared for the claimant distilled those into one. The remaining ground is: Did the officer report significantly mislead members on the application of the Colchester Borough Council Core Strategy Policy ENV1?

Under regulation 3 of the Town and Country Planning General Regulations 1992 an applicant for planning permission who is a Local Authority and wishes to develop its own land can apply to itself as Local Planning Authority and determine the application unless the application is referred to the Secretary of State under section 77 of the Town and Country Planning Act 1990.

Section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004 provide that a Local Planning Authority determining an application for planning permission must:

Planning policy is to be interpreted objectively in accordance with the language used and read in its proper context: see Tesco Stores Ltd v Dundee City Council [2012] 2 P&CR 162, at paragraphs 17 to 19.

What is a material consideration is a matter of law. How much weight should be given to it is a matter of planning judgment exclusively for the decision maker whether the Secretary of State or the Local Planning Authority. Provided the decision maker has regard to all material considerations it is entitled to give them what weight, if any, it thinks is relevant.

An application for judicial review is not an opportunity to review the planning merits of an inspector’s decision: see R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraphs 6 to 8.

An officer’s report is not susceptible to textual analysis as if it were a statute. An application for judicial review based on criticisms of a planning officer’s report will not merit consideration unless the overall effect of the report significantly misleads the committee about material matters which are left to go uncorrected at the meeting of the committee. In R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 Sullivan LJ said:

“19.

It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a commonsense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee. In R v Selby District Council ex parte Oxton Farms [1997] EGCS 60, Judge LJ, as he then was, said this:

"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."”

Because of the nature of the challenge it is necessary to set out certain parts of the officer report and addendum.

The report commenced with a description of the appeal site and the proposal. It recorded that the site was adjacent to the established Fernlea and Braiswick residential areas. Section 3 set out the policies which provided the Development Plan Framework for the application including ENV1 of the Colchester Core Strategy. Consultations and representations received on the planning application were then set out.

Section 6 of the report was the appraisal section. It began with section A on national policy considerations and the consultation process. That highlighted the National Planning Policy Framework (NPPF) with its three components to sustainable development. Section B was entitled ‘Need’. That reads

“Paragraph 72 of the Framework states inter alia that ‘The Government attaches great importance to ensuring that a sufficient choice of school places is available to meet the needs of existing and new communities. Local planning authorities should take a proactive, positive and collaborative approach to meeting this requirement, and to development that will widen choice in education…they should give great weight to the need to create, expand or alter schools’.

Letters of representation received have raised concerns to the County Planning Authority that, in summary, other schools within Colchester could be used or expanded to take up pupil increase; that forecast pupil increase is only due to neighbouring Chesterwell and Severall developments; that the main catchment area for the school comprises approximately 381 eligible primary school children within 800 metres of the site; Fernlea residents no longer have children which require a primary school, only 16 pupils will attend from Fernlea area; forecast pupil growth is unfounded.

In November 2013, the County Council as Education Authority published a document entitled ‘Primary School Places in Colchester’ which presented the evidenced education need and the school capacity issues within Colchester and its primary schools, including those that are oversubscribed and with no or limited capacity for expansion.

The applicant has stated within their submitted Planning Statement that the identified shortfall of primary school places is established by monitoring birth rates, new housing development and patters or parental preference across groups of schools. This information is used to forecast pupil numbers and to ensure there are sufficient school places across the county. It was this information that confirms a deficit of places over the next 4 years across Colchester, based on data provided by the Health Authorities in Essex in January 2013, showing the number of children living in the areas registered with a GP. The deficit currently stands at 138 places in 2014/15, rising to 215 places by 2017/18.

The applicant considered that there is a demonstrable need for additional school places in north Colchester.

The applicant has stated that existing schools nearest to the catchment area of Braiswick and New Braiswick Park have already been expanded where it has been possible to do so. Five schools were expanded to provide 57 additional reception places each year from September 2012 which are as follows;

School	Previous Reception admission number	Current Reception admission number
North Primary and Nursery	45	60
Queen Boudica Primary	45	60
Boxted St Peter’s CE (VC) Primary	18	30
Heathlands CE (VC)	50	60
Bishop William Ward CE (VA) Primary	25	30

The applicant has gone on to state that 30 additional places have also been provided for Reception admission in September 2014 only at St John’s Primary, with the provision of a relocatable class base. The applicant is also considering providing a relocatable classbase at Myland Primary to increase the number of places available in Year 1 by 70 bring total capacity to 340. This is needed because of increased pressure on the schools because of movement into the area. Lengthy discussions have been held with Myland about increasing it in size permanently but this has been ruled out in terms of the difficulty of the site.

The applicant has stated that the proposal would have a priority admission (catchment) area which would be relatively small, covering New Braiswick Park, Fernlea and Bergholt Road up to the A12. Even with this small catchment area, the number of pre-school children in this area is rising and expected to continue to rise as follows:

Year of entry to school	2014/15	2015/16	2016/17	2017/18
Number of Pre-school Children in the area covered by the priority admission area for the new Braiswick School	46	58	62	74

The applicant purchased the site to provide school accommodation that would enable the local need for the primary school provision in north Colchester to be met.

In March 2013, the Government announced the Targeted Basic Need (TBN) programme, which gave an opportunity for local authorities to bid for additional funding to increase school provision in areas of greatest need. The TBN funding outcomes were announced by the DfE on 18 July 2013, which required successful authorities to invite sponsors for new academy/free school provision by 2 August 2013. Within the planning statement it is noted that ECC undertook consultation with local headteachers regarding primary school need and the Braiswick site potential. On 29 July 2013 the Cabinet Member for Education and Lifelong Learning approved the publication of a specification inviting proposals to establish a new school on the Braiswick site.

In conclusion, the proposed development would result in the provision of school places, in addition to Early Year’s education provision within an area where there is an existing and increasing deficiency in primary school places whereby existing schooling accommodation has been fully expanded to meet the urgent and anticipated increase in pupil place demand. The Framework highlights that great weight should be given to the need to create schools and meet school provision in areas of school accommodation needs. The Planning Statement within the application evidences an increasing need and the proposal would address this need.”

Section C dealt with the principle of location. That included:

“As noted above the Framework, inter alia, states that the Government attaches great importance to ensuring sufficient choice for school places is available to meet the needs of existing and new communities. Local Planning Authorities should take a proactive, positive and collaborative approach to meeting this requirement.

…

The application site falls outside the development boundary, as identified within the CSA Proposals Map. However, the site is located adjacent to the defined settlement boundaries and surrounded by housing developments to the north, east and south with open fields to the west of the site.

…

Given the site’s location being outside the defined development boundary of the CSA, it is important to consider whether or not any alternative sites exist which would be better suited for the proposal.”

Alternative locations were then examined:

“In relation to assessing alternatives for the proposal’s location, as explained earlier in this report, the applicant has expanded all nearest schools within close proximity to the Braiswick and New Braiswick Park catchment areas; future schooling accommodation on the Chesterwell and Severalls site would be used to fulfil the primary school pupil needs of those developments; and the proposal would be located to meet an identified need for school places within the catchment area it serves (Braiswick and New Braiswick Park); the proposed location is in accordance with the requirements of the Framework and CFR policies SD2, SD3 and DP4.”

There then followed a section on highways which is not relevant to the current proceedings. Section E on landscape design and arboricultural issues included reference to Policy ENV1;

“Policy ENV1 (Environment) seeks the conservation and enhancement of the natural environment and countryside. Development on unallocated Greenfield land outside settlements will be strictly controlled to conserve the environmental assets and open character of the borough.

As noted earlier within this report the application site is unallocated within the CSA although located immediately adjacent to the defined settlement boundaries of Colchester. It is considered that although the principle of the proposal within this location is accepted it is important to assess whether or not the scheme would conserve the environmental and open character of the area.”

Trees were also referred to:

“The planning statement considers that the site benefits from a number of mature trees and hedges which made a valuable contribution to the local environment and character. The landscape scheme for the development retains the majority of TPO trees. Where there is a necessary loss of trees (35), mainly Category C⁴ (trees of low quality) or dead trees, these are adequately compensated with 70 native replacement trees. This includes particularly consideration of the proposed boundary treatment for the Fernlea access, which are the closest residents to the application scheme. A number of specific concerns were also raised and addressed below.

…

The submitted Landscape Management Plan would secure the active promotion of enhanced landscape and the encouragement of biodiversity on the site which is also further considered below within the ecology section of this report.

It is considered that the application proposals, as amended in light of comments received and those aspects identified above being capable of being conditioned, the proposal accords with the requirements of the Framework and CCS policies ENV1 and UR2 and CDP Policy DP1.”

Section F dealt with ecology and again referred to ENV1.

In the overall conclusions to the report it was said:

“The applicant has reviewed alternative locations and future schooling accommodation on other development sites would be used to fulfil the primary school pupil needs of those developments. Therefore, the principle of the need of additional education provision at this location has been established.

…

It is considered that the school would provide high quality buildings and facilities for effective learning environments for pupils. It is considered that the design of the building has been carefully considered and would be of a high quality and a benefit for the area in accordance with the Framework.

…

The need to meet economic, social and environmental dimensions of the Framework are considered to have been demonstrated and given that the proposal would deliver vital schooling accommodation, it is considered the development constitutes ‘sustainable development’ in accordance with the Framework.”

The recommendation was that planning permission be granted subject to conditions.

In the addendum to the report the officer dealt with the position of ENV1 as follows:

“It is important to note that the CBC Spatial Policy team who are responsible for the production of the Colchester Site Allocations and its replacement noted that the adopted Colchester planning policies do not prevent the development of suitably located development on the edge of Colchester and that the principle of the development of a primary school and early years in this location is acceptable. As noted above CCS policy ENV1 in summary seeks to protect and enhance unallocated greenfield land. However, in the light of CBC response it is considered that the proposal would not be a departure from this policy although the environmental considerations of CCS policy ENV1 are assessed with sections E and F of this report.”

Policy ENV1 reads:

“The Borough Council will conserve and enhance Colchester’s natural and historic environment, countryside and coastline. The Council will safeguard the Borough’s biodiversity, geology, history and archaeology through the protection and enhancement of sites of international, national, regional and local importance. In particular, developments that have an adverse impact on Natura 2000 sites or the Dedham Vale Area of Outstanding Natural Beauty will not be supported.

…

Unallocated greenfield land outside of settlement boundaries (to be defined/reviewed in the Site Allocations DPD) will be protected and where possible enhanced, in accordance with the Landscape Character Assessment. Within such areas development will be strictly controlled to conserve the environmental assets and open character of the Borough. Where new development needs, or is compatible with, a rural location, it should demonstrably:

i.

be in accord with national, regional and local policies for development within rural areas, including those for European and nationally designated areas; and

ii.

be appropriate in terms of its scale, siting, and design; and

iii.

protect, conserve or enhance landscape and townscape character, including maintaining settlement separation; and

iv.

protect, conserve or enhance the interests of natural and historic assets; and

v.

apply a sequential approach to land at risk of fluvial or coastal flooding in line with the guidance of PPS25; and

vi.

protect habitats and species and conserve and enhance the biodiversity of the Borough; and

vii.

provide for any necessary mitigating or compensatory measures.”

The explanatory memorandum to the policy includes:

“The policy aims to control development outside settlement boundaries to protect open stretches of countryside around and between existing settlements to prevent coalescence and retain settlement identity. The Landscape Character Assessment will inform the detailed application of the relevant policy criteria.”

The claimant submits that Policy ENV1 properly understood:

Properly understood, the claimant submits that policy ENV1 sets a two-stage approach. First, does the development proposed require a rural location or is it compatible with a rural location? Second, if it does, does the development proposed comply with the seven policy criteria under ENV1? The claimant’s case is that the proposal fails at the first stage.

The proposed development is for two substantial school buildings which do not protect the application site in accordance with the Landscape Character Assessment, do not conserve environmental assets or the open countryside of the borough and do not require a rural location and are not compatible with a rural location. Instead, the report takes as its premise the principle that the proposal within the application site was acceptable. That is wrong. The report needs to assess whether the scheme would preserve the environmental and open character of the area. The claimant submits that the explanation in the addendum and its reliance on the Borough Council is meaningless. Because the Borough Council thought the principle of development was acceptable the officer conclusion was that there was no departure from Policy ENV1. In fact, both in the addendum and in the officer report there is no attempt to grapple with the thrust of the policy. That error was not corrected in any way at the meeting on 26 September 2014.

As a result there is no consideration of whether the development requires a rural location or is compatible with a rural location, there is no consideration of criterion (i) under the policy and there is no consideration of criterion (iii) where it refers to protecting, conserving or enhancing the landscape. There is no assessment of the site in the overall landscape nor of the effect of its development on the overall openness. It is accepted that there is an assessment of the proposal against the townscape which is also referred to in ENV1. Throughout the report and its addendum there is no reference to the Landscape Character Assessment.

Had the officer directed the minds of the members to the relevant policy requirements it would or could have made a difference because the first question is whether there was a need for a rural location or for the development proposed to be compatible with such a location. Whilst it is accepted that schools can and do occur in rural locations under policy ENV1 they would need to be within a settlement. It is accepted that the policy is such that beyond the settlement boundaries constitutes a rural location.

The defendant submits that the application site is surrounded by housing on three sides. It is a site of 3.82 hectares consisting of rough grassland, trees and hedging and to which there is no public access.

On ENV1 the question is whether the particular development proposed needs to be on the development site. The officer report, therefore, needed to consider whether the school proposed was needed in this particular rural location which is what the report did. The witness statement of Mr Wilby demonstrates that there was a need for additional primary school and early years places to serve this catchment area. As a result need was for the development in the location proposed was established.

However, that was not the end of consideration of ENV1 because it was accepted that, in itself, that did not bring compliance with the policy. As a second stage the development needed to be considered against social and environmental impacts. That was dealt with within the report, addendum and in the oral presentation by the officer, which included reference to the necessary loss of trees of mainly low quality but their replacement by seventy native trees. The submitted Landscape Management Plan was to secure active promotion of enhanced landscape and encouragement of biodiversity on the site which was considered also in the ecology section of the report. Of note was the fact that in commenting on the application FRAG made no reference to the impact on the landscape.

The defendant continues, as a matter of good practice, to set out its reasons for the grant of planning permission even though there is no longer a statutory requirement to do so. The reasons for a grant of permission here make it clear that need for the development was accepted as was the fact that there were no alternative locations.

There is no reference to the Landscape Character Assessment within the officer report or addendum but it was not raised as an issue by the claimant in its grounds and did not feature until the claimant’s skeleton argument. In fact the Landscape Character Assessment was prepared in 2005 before the building out of the Braiswick Park development and so is out of date. The landscape officer raised no objection to the proposal. The claimant does not make any positive case about the Landscape Character Appraisal but says simply that it was not referred to. That did not significantly mislead the committee. They were an informed readership and were familiar with the site and the area.

If there was an error of law the defendant contends it would have made no difference to the outcome. Paragraph 72 of the NPPF makes it clear that the Government attaches significant weight to the choice of schools available and the requirement to create new schools. Given that it is accepted that it is sustainable development and that all the other development plan policies are met it is inevitable that the application would have been granted planning permission.

The defendant submits that the complete silence from the claimant from the date of the committee meeting until the penultimate day of the six weeks within which a challenge could be lodged and the absence of explanation for any delay when lawyers were instructed throughout are matters that should be taken into account when considering whether to withhold any remedy if that is relevant.

The building work that has been done on site given the acute need for school places in September 2015 is of significance. Trees have been felled and removed from site, the ground work sub-contractor has started, an access road has been created from Apprentice Drive and piling for foundations has commenced. Those are all factors which are to be taken into account. The defendant relies upon the case of R (Gavin) v London Borough of Haringhey [2003] EWHC 2591 at [60] and [61] where Richards J (as he then was) considered the position of the then interested party carrying out the development after permission had been granted and in the absence of the claimant seeking an injunction to prevent the continuation of the works. He took the view that it was not unreasonable in the circumstances for the interested party to continue with the works even after the commencement of the proceedings. He thought that it was acceptable to take into account costs incurred after the commencement of proceedings as well as before.

The defendant acquired the site in 2012 and successfully applied for a targeted basic need fund allocation to increase school provision in areas of greatest need. It obtained about £4.2m in funding. It has currently expended some £1.2m. Should the permission be quashed it is uncertain whether that will have to be repaid. The position is analogous to cases on schools’ admissions because if the permission is quashed it will place at risk the number of school places which are offered from September 2015. At present applications have already been made for places at the school, the outcome of which is expected to be notified in April 2015. There is, therefore, a distinct third party interest in the outcome of these proceedings.

The claimant contends that he did not receive the planning permission until 30 September 2014. By that time it had been issued so the absence of a pre-action protocol letter would have had no effect upon either its issue or the subsequent course of events. The history indicates that the council would have continued with its construction on site as it has done.

So far as the wider prejudice is concerned it is not the claimant’s fault that the defendant submitted an application in June 2014 for a school that was to open in September 2015. The claimant and others concerned have the right to have a lawful decision. If the decision is quashed it is not certain that the planning decision is bound to be the same. If members had been told the principle of development was unacceptable then they could have weighed the various factors. Until that is done properly there is no certainty that the result will be the same.

Policy ENV1 casts a protective net on those areas which are subject to it, which is everything outside the settlement boundary. Within that overall protection there are gradations. It is clear from the policy wording that no development would be supported in areas where the development would have an adverse impact on the Natura 2000 sites or Dedham Vale AONB. When considering unallocated greenfield land outside the settlement boundaries no such prohibition is imposed. If development is needed in a rural location or is compatible with a rural location (about each of which I say more below) then it needs to satisfy the seven criteria listed under the policy which I have set out above. The explanatory memorandum amplifies that the policy aims to control development outside settlement boundaries to protect open stretches of countryside around and between existing settlements; the emphasis is of control rather than prohibition. Both the policy and the explanatory memorandum refer to the Landscape Character Assessment informing a decision as to prospective use which should result, where possible, in enhancement. The consideration of the Landscape Character Assessment is only relevant though where development is to take place. The prior question is whether it should. It follows that I accept the submissions on the part of the claimant that there is a two-stage process to the policy. The first is to come to a conclusion as to whether the development proposed is acceptable in principle under the policy and, second, to consider whether it meets the criteria set out under Policy ENV1.

Is the development acceptable as a matter of principle? The officer report considered whether there was a need for the development proposed. It referred to paragraph 72 of the NPPF with its emphasis on ensuring that a sufficient choice of school places was available to meet the needs of existing and new communities. Local Planning Authorities are advised to give great weight to the need to create, expand or alter schools. From the officer report it is evident that the defendant had evidence as to which schools had no or limited capacity for expansion and those that were oversubscribed. The data produced showed a rising deficit in primary school places over the next four years across Colchester. The existing Braiswick and New Braiswick Park schools had been expanded to meet an urgent and anticipated increase in pupil place demand such that they had no further capacity. Other schools were planned but they were to meet planned residential development in their own areas so that all schools proposed including that on the application site were said to be required to meet the identified increase in need. There was a clear need for additional school provision.

The application site would be located to meet an identified need for school places within the catchment area it serves (Braiswick and New Braiswick Park). None of the existing schools were within walking distance of the Braiswick and New Braiswick Park catchments and none had sufficient land or buildings to accommodate primary school needs. They had reached their maximum site capacity. Mr Wilby’s witness statement confirms that there are no other suitable sites in the locality where a school could be located to meet the local need. It follows, that members accepted on the basis of the report that there was no suitable and available site to serve the catchment area within the settlement boundary. The inevitable consequence of that is that a site is required in a rural location to meet the needs of the catchment area which would otherwise be unmet.

Mr Green, on behalf of the claimant, accepts the needs assessment that was carried out by the defendant and, although he has reservations about it, the alternative sites exercise that was done. He submits, however, that that does not comply with Policy ENV1 which requires a development which needs or is compatible with a rural location. That submission is to ignore the context of ENV1. Because a rural location under Policy ENV1 is everything outside settlement boundaries it follows that areas may be rural under the policy whilst, in fact, exhibiting non rural characteristics and being more akin to urban fringe. Some development might be acceptable there, applying the policy criteria, whilst not meeting the policy criteria when applied to a site within the open countryside. But in each case provided that it was established that the agreed need had to be met the first stage of the policy would have been complied with, namely, whether the development was acceptable in principle.

There is no other site for the proposed development within the settlement boundaries. The development proposed has to satisfy the needs of its catchment area. It would be pointless to have a site within the urban area of Colchester which was unable to satisfy the catchment area of Braiswick and New Braiswick Park. To be able to meet the requirements of primary school places serving the relevant catchment there was no other site. It follows that under policy ENV1 that the development proposed was both needed in and was compatible with a rural location. As a matter of principle, therefore, the officer report was, in my judgment, correct in concluding that, first, there was a need for a primary school and an early years learning centre within the catchment area and, second, that there was no other site upon which that need could be accommodated. The only location where the proposed development could go was the development site which was adjacent to the defined settlement boundaries and surrounded by housing development on three sides. It happened to be a rural location under the policy. The claimant says that the buildings proposed are not policy compliant in principle. That is to misunderstand the first stage of the policy and to divorce it from the requirements of need and the fact that there were no alternative sites within the catchment area that the development had to serve within the settlement boundary. It follows that the first stage of the policy was satisfied and was properly assessed within the officer report within section C.

The report went on to consider the environmental and social impacts. In relation to the seven criteria of ENV1 Mr Green submitted that criteria (i) and (iii) had not been considered. He makes no criticism about the treatment of the application against the other criteria.

Criterion (i) is that the development should be in accord with national, regional and local policies for development within rural areas including those for European and nationally designated sites. As the defendant observes the claimant has not drawn attention to any national, regional or local policies with which it is said the development does not comply. It is clear and it is not contended that the application site is affected by any European or nationally designated area. It is right to observe that the absence of consideration of criterion (i) does not feature in the claimant’s statement of facts and grounds. The officer report referred to national policy considerations in section A. Within that section paragraph 7 of the NPPF is the subject of particular attention. Paragraph 72 of the NPPF is referred to in section B. Both of those policies apply to rural areas as well as urban areas. No regional policy is referred to within the officer report or addendum nor is any alleged to be contravened by the claimant. On local policy the policies referred to are set out within the officer report in section 3. Apart from ENV1 none are the subject of criticism by the claimant nor is it said that there are others which the officer should have taken into account and referred members to. In those circumstances it is difficult to see how it can be said that the report significantly misled the members.

Criterion (iii) is to protect, conserve or enhance landscape and townscape character, including maintaining settlement separation. The claimant accepts that the townscape character was considered within the report but contends that protection, conservation or enhancement to the landscape was not. That has to be seen, first, in the context of no objection on the part of the landscape officer. Second, section E of the officer report is entitled ‘Landscape, Design and Arboricultural Issues’. Within that section the letters of representation are outlined including objections which relate to the impact upon the landscape character of the existing countryside area. Under the ‘Design’ subheading policy DP1 with its requirement that development respect and enhance the landscape and other assets that contribute positively to the site and the surrounding area is set out. Under the ‘Landscape and Arboricultural’ subheading the report continues that it is important to assess whether or not the scheme would conserve the environmental and open character of the area. The report considered the necessary loss of thirty-five trees, mostly of poor quality, and their replacement by seventy native replacement trees as adequate compensation. The report referred also to the submitted Landscape Management Plan which would secure the active fruition of enhanced landscape and encouragement of biodiversity on the site. Conditions were imposed to secure that the development took place in accordance with the details contained within amongst other things the Landscape And Ecological Management Plan and the Arboricultural Methods Statement. The reasons given for conditions 2, 3, 4, 5, 10, 14, 15, 16 and 17 all refer to Policy ENV1. The report found that there was policy accord. Whether there was or was not was for the members to judge but the issue was placed fairly before them.

Further, the appropriateness for the site for development against Policy ENV1 was commented upon by the Local Planning Authority, Colchester Borough Council. The Addendum to the report quoted their response to the contention that the development was contrary to ENV1. It said:

“It is important to note that the CBC Spatial Policy Team are responsible for the production of the Colchester site allocation and its replacements noted that the adopted Colchester planning policies do not prevent the development of suitably located development on the edge of Colchester and that the principle of the development of a primary school and early years in this location is acceptable. As noted above CCS Policy ENV1 in summary seeks to protect and enhance an allocated Greenfield land. However, in light of CBC response it is considered that the proposal would not be a departure from this policy although the environmental considerations of CCS Policy ENV1 are assessed with sections E and F of this report.”

That comment was not made in a vacuum but in the knowledge of the case made out by the Local Education Authority and the requirements of the primary school and early years’ pupils. It was material for the members to know those views.

It is correct that there is no express reference to Landscape Character Assessment but that (the court was told) was carried out in 2005 prior to the development of New Braiswick Park so there had been change in the character of the area in any event. The claimant did not identify how that omission resulted in any misleading of members. I find that the officer report carried out a sufficient appraisal of the development against the relevant criteria under Policy ENV1.

It follows that I conclude that the officer report did not significantly mislead members who were familiar with the area and were an informed readership.

Strictly, I do not need to deal with this given my finding on the central issue. However, I say something for the sake of completeness.

The claim was made on the penultimate day of the six week period during which a challenge could be brought. There was no prior warning that a claim was pending given to the defendant. Since issue the claimant has made no claim for interim relief. From when the application was being considered prior to the grant of planning permission the claimant has throughout had solicitors acting. He has been aware also of the time pressures placed on the defendant for the construction of the school to enable it to open in September 2015. In those circumstances I find the claimant could and should have sent a pre-action protocol letter as soon as possible. There has been no explanation for their failure to do so.

Because of the pressures that it was under the defendant had purchased the site in 2012 to increase the educational provision in the locality as part of the place planning strategy. It sought and obtained funding from the Department of Education for the construction of the new school. On 15 October 2014 after the grant of planning permission contracts were signed for the construction of the school which was commenced and which continues. Prior to then, on 26 February 2014 and 26 June 2014, two payments had been made for pre-construction works in the sums of £183,226 and £189,435 respectively. After the contracts were signed further sums were paid, namely £286,881 on 23 October 2014, £178,372 on 4 November 2014, £845,066 on 18 December 2014, with a further sum of £399,887 due to be paid on 31 January 2015. Further sums are then due, on average in the region of £400,000, at the end of each month. Parents have made applications for school places at the school for their children in September 2015 and are awaiting the outcome of their bids in April. They have, therefore, relied upon the planning permission and the works taking place on site and acted accordingly. It would clearly be contrary to the interests of good administration to undermine the basis upon which they have acted. In those circumstances, if I needed to do so, I would have considered that the detriment to good administration ought to be taken into account as a factor relevant to the exercise of discretion to quash.

In addition, it is clear from what I have set out above that the defendant would suffer considerable hardship. It may be that the defendant could renegotiate with the Department of Education but that is most uncertain. In the mean time the current position where some children of primary school age are transported to schools outside the catchment area and some distance away from their home means that they are spending a significant amount of time travelling to and from school. That is also a cost to the defendant who has to provide free school transport. If it was relevant to do so I would have concluded that the hardships suffered by the defendant and the prejudice to good administration were such that I would exercise my discretion not to quash the planning permission.

Given the situation on need and alternative sites which are not contested it does seem to me to be inevitable that if there was an error of law the defendant would reach the same decision if it had to re-determine the application. In the light of what I have found that is not necessary but so that all angles are covered I have dealt with it.

For those reasons I would have granted permission to proceed with the claim but would have dismissed the substantive application.