Liverpool Open And Green Spaces Community Interest Company, R (On the Application Of) v Liverpool City Council

This is my judgment in two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into 12 apartments.

The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park. The interested parties are the developer of the proposed housing (the developer), and a representative of the body that runs the miniature railway, which it intends to relocate. The latter has taken no part in the case.

Readers of this judgment should understand that it is not my function to decide whether these proposed developments should or should not proceed, in the public interest. That is for the democratically accountable LPA, properly applying the law, to decide. My task is only to determine whether, in granting the two planning permissions, it properly applied the law and, if not, whether the decisions should be quashed and the matter reconsidered.

There are five wide ranging grounds of challenge. Limited permission was granted by His Honour Judge Davies in separate orders made on 9 January and 10 April 2018 to proceed with only one of the five grounds. The other four have been renewed orally and were argued before me on a “rolled up” basis. The sole ground on which permission was granted in both claims was that the LPA had misinterpreted its policy in its development plan.

The LPA and the developer resist the claims and argue that the two planning permissions were lawfully granted, contrary to the arguments advanced by LOGS. And they say that even if that is wrong, I must refuse the remedy sought because it is highly likely that if there was any error of law, the outcome would not have been substantially different had the conduct complained of not occurred (section 31(2A) of the Senior Courts Act 1981).

The park is a stretch of open ground with grassed areas, plants and trees, created in 1902 by the then Liverpool Corporation. There is an adjacent school with playing fields, allotments, a picnic area, a lake, a woodland trail, a miniature railway, a grade II listed building, Beechley House, with grade II listed riding stables and surrounding grounds. Parts of the park (including part of the application site for the residential development) were purchased by the Liverpool Corporation in 1914 and are now owned by the LPA.

In November 2002, the LPA adopted its Unitary Development Plan (the UDP), entitled A Plan for Liverpool. A new draft local plan was in the process of being consulted upon with a view to adoption at the time of the hearing before me. It is agreed that when the challenged decisions were made, the operative plan was the UDP. As explained at paragraph 1.1, it was adopted as a requirement under the Local Government Act 1985.

The UDP includes a chapter on Strategic Objectives and Policies (chapter 5). The policies in that chapter are prefixed “GEN”, standing for “general”. Chapter 7 is entitled Heritage and Design in the Built Environment; the policies in it are prefixed “HD”, for “Heritage and Design”. Chapter 8 bears the title Open Environment; hence the policies in it are prefixed “OE”. The meaning and content of policies in those chapters was debated before me.

In 2015, the developer was in discussions with the LPA concerning its proposal to build a new residential development in the park. A partnership agreement was entered into between the LPA and the developer on 16 February 2015 to regulate and take forward the latter’s proposal for a housing development at Beechley House and the surrounding area.

Following a joint site visit to Harthill depot, part of the application site, the developer emailed the LPA in June 2015, expressing concern that the land was not necessarily closed off to the public and was therefore vulnerable to “a town and village green application”. The developer suggested that the LPA should erect signs around the site stating that it was “private land”.

In November 2015 the LPA passed a resolution welcoming the mayor’s initiative

“to free up the land on Harthill Road currently occupied by Beechley Stables, Calder Kids and the Miniature Railway to support a housing development scheme” and welcoming the mayor’s “clarification that [the LPA] is not selling any part of Calderstones Park”. The LPA’s view was that the application site was not part of the park.

That was, as a note explained, because the three sites “sit outside of Calderstones Park and were not available to the public without authorisation”. Opponents of the proposal contended that the application sites for the two planning permissions are part of the park and as such held in trust for public use. They pointed to other planning application documents from 2010, which had treated the same land as

“within” the park.

In July 2016, opponents of the proposed development scheme made an application

In February 2017, the LPA’s interim head of planning produced a report on the developer’s application (no 16F/2049) to build the 51 new dwellings (the officer’s report or “OR”). It was a detailed document which, it is agreed, may be taken to record the reasons for the planning committee’s subsequent decision to grant that application. It began, as is usual, by describing the site and the proposals and summarising the responses of those consulted, including objectors, of which there were many.

The OR then set out relevant extracts from the National Planning and Policy Framework (NPPF), in the then current version dated 27 March 2012. This was of particular relevance in relation to the heritage assets forming part of the application site. Reference was made to the applicable statutory provisions and policies in the UDP, to which I will return when considering the parties’ submissions and my reasoning and conclusions.

There was then an “Officer Assessment” of the proposals, covering 10 numbered

The most important conclusions in the OR that are relevant for present purposes

Second, the site was part of the “Green Wedge” land as defined in the UDP, but was “of a different character to other parts of the Green Wedge”, its openness was “already somewhat compromised” and the redevelopment proposed “in the main, would not unduly impact on the predominantly open character of the wider Green

Third, the OR made the point that the proposal would provide much needed housing and the LPA was required to meet the government’s target of five years’ worth of housing supply. Although the site was greenfield not brownfield and brownfield sites are generally preferable, each site must be considered on its merits.

Fourth, the harm to heritage assets would be less than substantial. This had to be balanced against the public benefits of the proposals. The interim head of planning considered that the balance favoured granting permission: “the scheme would provide a public benefit in securing its [Beechley House’s] optimum viable use. As such … this part of the scheme is acceptable and accords with both the NPPF and saved policy HD4 of the UDP”.

The same conclusion applied to the other heritage assets affected by the scheme but not on the site; so that:

“[o]verall … the proposed conversion and alterations of the designated heritage assets … will sustain and enhance their significance and … any harm to the setting of Beechley Stables and any other heritage assets would be classed as less than substantial, being outweighed by the wider public/regeneration benefits delivered from the proposed development as a whole ….”

Having considered ecology, archaeology, trees and landscaping, the design, layout and housing mix of the new build elements, residential amenity, access and parking, open space requirements and other matters such as flood risk and drainage and the outstanding village green application (considered irrelevant), the OR concluded that this was “a finely balanced application where any identified harm must be carefully weighed against the wider benefits that the proposal would bring”.

Nonetheless, for the reasons given earlier in the report, the scheme was “on balance, acceptable having regard to the wider public/regeneration benefits that it would deliver”. Impacts on openness, green space, highways, design, ecology, archaeology, trees and the amenity of nearby occupiers were “acceptable”; while “[a]ny impacts on Heritage are considered to be outweighed by the public benefits identified within the report”.

The recommendation was accepted and planning permission granted on 14 February 2017. The minutes suggest the debate was lively and controversial. Objections were heard and responses to them were provided by planning officers in support of the proposal. A major area of dispute was whether the proposal would run counter to the policies in the UDP, in particular policies OE3 and OE11.

On 25 July 2017, the LPA considered an officer’s report on a separate planning application (no 17F/0044) to lay out a miniature railway with tracks, station, containers, club house and associated parking, hardstanding, fencing and landscaping. The applicant was Mr Brooks, the second interested party. The application flowed from the need to discontinue the existing miniature railway to make way for the new residential development and to relocate the railway elsewhere within the park.

In that report, the interim head of planning acknowledged the concerns raised by objectors but took the view that “the proposal would not unduly impact on the predominantly open character of the wider Green wedge and therefore the scheme would not conflict with the aims and objectives of part (i) of Saved Policy OE3”. Thus, the effect of policy OE3 was viewed in the same light as in the case of the more substantial planning application for the residential development.

The miniature railway application (no 17F/0044) was granted on 25 July 2017. The permission was issued on 10 August 2017. A challenge to the issue of that permission was then brought on 19 September 2017. While it was pending, planning permission was issued on the main application of the developer (no 16F/2049) on 9 January 2018. The first challenge was then dealt with by HHJ Davies on the papers who, also on 9 January 2018, granted permission to pursue one of the grounds, as already explained.

On 20 February 2018, the second claim was filed, challenging the planning permission issued to the developer on 9 January 2018. When that matter came before HHJ Davies on the papers, he made his second order on 10 April 2018, granting permission on only one ground and giving directions that the two claims be heard together, with any oral renewal of disallowed grounds proceeding at the same time as a rolled up hearing.

I can deal with the applicable law briefly and without lengthy citation, since there was no disagreement in the course of argument about the effect of the statutory provisions or, for the most part, of the case law. The relevant areas are: deciding upon proposals that affect heritage assets; interpretation and application of policies in a development plan; the correct approach to officers’ reports; and material mistake of fact.

In considering whether to grant planning permission for development which affects

I was referred to many of the cases customarily cited, dealing with the requirement to undertake a weighted balancing exercise when performing the section 66(1) duty. It is sufficient to refer to very few of the authorities.

Where the heritage provisions in the NPPF corresponding to the section 66(1) duty

However, where section 66(1) applies, the decision maker must avoid the error of

By section 70(2) of the Town and Country Planning Act 1990, in dealing with an application for planning permission the authority must have regard to the provisions of the development plan, so far as material to the application, as well as any other material considerations. By section 38(6) of the Planning and Compulsory Purchase Act 2004, where regard must be had to the development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise. The development plan is given primacy by statute and policy.

The meaning of its provisions is a question of law, not one for the planning authority to determine within the limits of rationality; but many statements of policy in a development plan require exercise of planning judgment. The weight to be given to a particular material consideration is a matter for the authority and can be challenged only if the exercise of its judgment is irrational or perverse (see Lord Carnwath JSC’s speech in Suffolk Coastal DC v. Hopkins Homes Ltd [2017] UKSC 37, [2017] 1 WLR 1865 at [21]-[22], citing classic earlier Supreme Court and House of Lords authority).

I have borne in mind the seven familiar principles enunciated by Lindblom J in

The correct interpretation of policies in a development plan should not be the

However, it is sometimes necessary to look at the forerunners of a particular

I bear in mind that officers’ reports should be read with a benevolent eye, without

Where it is said that a planning authority has made a decision on the basis of a material error of fact, the question is whether there was a mistake as to an existing fact (including a mistake as to availability of evidence on a particular matter); the fact must be objectively verifiable; the claimant must not have been responsible for the mistake; and it must have played a material, though not necessarily decisive, part in the decision: R (Watt) v. Hackney LBC [2016] EWHC 1978 (Admin) per Gilbart J at [49]-[53], citing from the judgment of Carnwath LJ (as he then was) in E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044.

The grounds of challenge in the two claims have been formulated in various ways and not always in the same order. I will address the five grounds in a different order to that in which the parties dealt with them in their written and oral submissions. In numbering the grounds as 1-5, below, I follow the order in which they appear in the skeleton argument on behalf of LOGS, though I do not address them in that order.

The first ground of complaint is that the LPA failed to apply the statutory presumption against harmful development in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 or to apply policy HD5 of the UDP and gave no explanation of how it applied the presumption and policy. The OR also failed to inform the planning committee about the objection of the LPA’s own urban design and heritage conservation team.

In support of that contention, Mr Westaway made the following main points. He submitted that the committee fell into the error of treating the harm to heritage assets that would result from granting permission as a mere material consideration to be balanced against the planning benefits of the proposal in an unweighted balancing exercise. He relied on the following points from the evidence.

The minutes of planning committee meeting on 14 February 2017 include a

I should explain that the grade II listings extended to Beechley House itself, its

Mr Westaway submitted that the committee was led into the error of equating the less than substantial harm to the listed buildings and their setting, with a less than substantial objection which failed to accord the required considerable weight to the harm that would be caused. He contended that the OR compounded rather than correcting the error. He accepts that the provisions were referred to early in the OR, but says that when applied to the facts later in the OR, the test was watered down.

He submitted that the more prominent formulations omitted any reference to the

Mr Westaway submitted that the OR proceeded to formulate and apply the same unweighted balancing exercise to each element of the identified harm found to be less than substantial. The elements were: harm to Beechley House caused by alterations to the internal layout and arrangement of accommodation to form eight new apartments; harm to the entrance gates caused by widening them; harm to Beechley Stables caused by converting them into three new properties; and harm to the setting of Beechley House by erecting three dwellings in its historic grounds.

The same error, argued Mr Westaway, occurred when the OR was considering harm

Mr Westaway submitted that the failure to apply the presumption in section 66(1)

The OR listed “Internal Consultee Responses” and referred to three such responses from, respectively, environmental health, highways and the drainage engineer. None raised any serious issue. The OR omitted from the list any mention of the response of the conservation team. Mr Westaway said this was misleading and wrong. He pointed out that the CTR explained that the proposal involved the following:

“Modern fencing, erected in connection with equestrian centre, across lower section of private grounds to SE of main house and terrace, will be removed. 3 detached houses erected in a row in front of shelter belt of mature trees which enclose whole grounds. New houses linked to development to N by access road through the shelter belt to NE. Fence separating development land from main grounds … would be on line of existing paddock fence nearest to footprint of pavilion demolished by end of C20 visible in NE corner…

Level of harm would be less than substantial but alteration not acceptable due to impact on setting of main house and Ha Ha. Grounds have remained substantially in tact [sic] and in single ownership. Only built structure in area now proposed for 3 houses was mid-C20 pavilion for use in connection for use in connection with recreation facilities, footprint of which was located next to shelter belt trees.”

Other detailed observations were made in the CTR about other aspects of the proposal, with less concern. The setting was “still an undeveloped planned Victorian buffer between the house and the wider environment”; the adverse effect on the setting of the three new houses within the grounds means the building of the three new houses “is not supported from a conservation point of view”; furthermore:

“… the future of the [sic] all the land within the historic curtilage of Beechley, which forms the principle [sic] setting of all its listed buildings, should be ensured by appropriate management of the whole landscape, not just the areas close to the main house and entrance.”

The recommendation was that while the listed building applications were acceptable from a conservation point of view:

“the proposed planning application would not be supported from a conservation point of view at present because of the adverse impact which one aspect of it would have on the setting of the Grade II listed house. As stated in NPPF paragraph 134, it is for the decision-maker to consider the public benefits of the scheme against the identified harm to the significance of the listed buildings and structures at the Beechley site.”

The committee was not told about this important objection, Mr Westaway argued. The identity of the objector, within the LPA itself, and the nature of the objection, gave it a particular status which made it unjustifiable and misleading to omit it from the list of otherwise positive or neutral comments from within the LPA. The summaries of grounds of objection elsewhere in the report did not make up the deficit. The concerns expressed in the CTR about the Ha Ha were nowhere reflected in the OR; nor were other, less substantial concerns about deterioration of the “shelter belt” (belt for planting of trees) and the trees in the paddock.

Mr Westaway also criticised as untenable the conclusion in the same passages of the OR that the proposal would be, in effect, compliant with policy HD5. That policy begins with the words:

“Planning permission will only be granted for development affecting the setting of a listed building, which preserves the setting and important views of the building….”

The policy then refers to the statutory duty to have “special regard to the desirability of preserving the setting of listed buildings when considering development proposals which affect a listed building or its setting”. Mr Westaway argued that the committee should have been advised that the proposal was in clear conflict with policy HD5, instead of being advised that the proposal complied with that policy.

Mr Paul Tucker QC, for the LPA, made the following main points in response. He said that although the section 66(1) duty requires the decision maker to give a finding of harm considerable importance and weight, the statute did not create any “statutorily prescribed amount of weight to which the decision maker must give a consideration under s.66”. The assessment of the degree of harm was “a matter of pure unfettered planning judgment”.

He reminded me of the inference that where a decision maker is referred to the statutory duty, the relevant parts of the NPPF and the relevant development plan policies and works through them, there is an inference that the section 66(1) duty is properly performed. He reminded me that it was for LOGS to show that the inference is rebutted by contrary indications.

Mr Tucker submitted that the necessary exercise was performed here and that the OR is what he called “Palmer compliant”. He suggested that when confronted with the test set out in the later parts of the report, which do not mention (he accepted) the weighting needed as part of the balancing exercise, the committee would not have forgotten the mention of the weighting requirement some 14 pages earlier in the OR. LOGS’ case relied on pedantry and excessive legalism.

He also reminded me that any conflict with a policy in the UDP would have to amount to a conflict with the UDP read as a whole. It was not necessary for the decision maker to be referred to every policy: Tiviot Way Investments Ltd v. Secretary of State for Communities and Local Government [2015] EWHC 2489

Mr Tucker disputed LOGS’ proposition that the OR failed to advise the committee

Mr Tucker accepted that the OR had not credited the conservation team with

For the developer, Mr David Manley QC made submissions to the same effect. He

He echoed Mr Tucker’s submission that the OR adequately reflected the content of the CTR produced by the conservation team; that the latter’s objection was limited to the erection of three new houses within the grounds of Beechley House; and that objection on conservation grounds to this part of the proposal was noted in the report, albeit without attribution to the conservation team or inclusion of the team among the list of internal consultees.

As to the assertion that the OR should have pointed to a conflict with policy HD5, Mr Manley pointed out that the OR included reference to that policy, explaining that it “seeks to ensure that the setting and important views of a listed building are preserved by controlling the design and siting of new development; controlling the use of adjacent land and preserving trees and landscape features”. That accurately reflected the safeguards within policy HD5 where development affecting a listed building or its setting is allowed.

The author of the OR, said Mr Manley, had correctly conceded that the three new

In my judgment, this ground of challenge is clearly arguable. I grant permission

The OR did, as the LPA and the developer submit, include mention of section 66(1) and did paraphrase, with reasonable accuracy, the effect of the corresponding paragraphs (129-134) in the NPPF, including the proposition that “[g]reat weight is given to the designated asset’s conservation”. The passage that followed stated, unobjectionably, that:

“… where harm is identified, the application should be refused however where there would be less than substantial harm, this must be weighed against the public benefits.”

I accept also that 12 pages later, in the section dealing with the character and setting of the listed buildings, the NPPF paragraphs 129-134 were again mentioned, including the reference to the test of “clear and convincing justification” for any harm or loss, albeit this time without the reference in paragraph 132 to the need to give “great weight” to the conservation of a designated heritage asset.

The inference therefore arises that the committee was properly appraised of and properly carried out its section 66(1) duty, unless contra-indications rebutting the inference raise at least a substantial doubt that they did so. I therefore have to consider whether LOGS has demonstrated the existence of such contra-indications. I have come to the conclusion that there are such contra-indications here.

The first and important one is the omission to mention or credit the CTR, produced by the conservation team. In my judgment, the LPA and the developer are wrong to dismiss the significance of this omission and LOGS is correct to emphasise that the CTR came from within the LPA itself and that the omission created a false and misleading impression that the LPA as an organisation had no objection to the proposals from a heritage perspective. That had the effect of downplaying the weight to be given to harm to the heritage assets or their setting.

It troubles me that the committee was told of only three internal responses to the

Yet, the “strong conservation objections” of the conservation team to the proposal

It is not a complete answer to argue that the views of the conservation team were

That suggests the distinction is significant and that it is of significance to the committee to be told whether a particular consultation response comes from within or outside the LPA. That is not particularly surprising. The LPA’s conservation team, like the environmental health and highways officers and the drainage engineer, has expertise in conservation matters and like them is paid by the local taxpayer to express them in the public interest.

The same cannot be said of those listed under the generic heading “Opposition”

A balanced report would have summarised the view of the conservation team as a negative internal consultation response counterbalancing the relatively positive ones from highways, environmental health and the drainage engineer. It is then necessary to consider the assessment within the section numbered 4 in the OR headed “Character and Setting of the Listed Buildings”, to see whether balance is restored.

In this fourth section of the report, the author comments on each aspect of the proposal in so far as it impacts on heritage assets. It is this section that contains what the LPA and the developer say is a fair summary of the conservation team’s objection to the three new houses. It does indeed include an acknowledgment that erecting them “in the historic grounds of Beechley would result in some harm to its setting and also the Ha Ha”, categorised as less than substantial.

It is, however, striking that the section includes four times a mantra-like formulation of the balancing exercise which contains no reference to any weighting and each time it is repeated, places emphasis on paragraph 134 of the NPPF, dealing with cases of “less than substantial harm”, without mentioning paragraph 132 containing the words “great weight” and “clear and convincing justification”.

The first of the four “unweighted” formulations of the test is found under the heading “Beechley” and deals with the internal layout and arrangement of accommodation within the house itself. The second is under the heading “Widening of Beechley Entrance Gates”. The third is at the end of the discussion about “Beechley Stables”. The fourth comes near the end of the commentary on

“Erection of 3 detached houses within the grounds”.

The effect is to play down the part of the exercise represented by paragraph 132 and

A fifth and final formulation of the test ends the fourth section, as follows:

“Overall, the Interim Head of Planning is satisfied that the proposed conversion and alterations of the designated heritage assets of Beechley and Beechley Stables will sustain and enhance their significance and that any harm to the setting of Beechley and other heritage assets would be classed as less than substantial, being outweighed by the wider public/regeneration benefits delivered from the proposed development as a whole, in accordance with paragraph 134 of the NPPF.”

This adds the wrong notion that being outweighed by the public benefits contributes

That language is similar to the language found in the minutes of the meeting on 14 February 2017, to which my attention was drawn by Mr Westaway, and from which I have already quoted.

In the light of all that evidence, I am very far from comforted by the assurances of Mr Tucker and Mr Manley that the committee can be taken to have remembered the isolated reference to “great weight” and “clear and convincing justification” earlier in the OR; nor, reading the OR as I do without legalistic rigour and with a benevolent eye, am I satisfied that the OR avoided watering down the duty under section 66(1). I am left with, at the very least, a substantial doubt on the point.

For completeness, I should add that I do not base my conclusion on the treatment of

For those reasons, I uphold this ground of challenge. I will consider later whether that conclusion should nonetheless not lead to any relief being granted, in the light of section 31(2A) of the Senior Courts Act 1981.

Permission was granted to argue this ground in both claims. The complaint, as put in LOGS’ skeleton argument, is that the LPA misinterpreted or irrationally applied

The latter arguments – irrationality and adequate reasons – were, rightly, not strongly pressed and are, I think, an unnecessary distraction. Irrationality and reasons challenges are often unnecessarily tacked on to grounds of substance. If the policy OE3 was correctly interpreted, it seems to me untenable to say it was irrationally applied or the decision inadequately reasoned. But if the policy was misinterpreted, irrationality and inadequate reasoning are not needed and do not improve the case.

Policy OE3 states:

“The City Council will protect and improve the open character, landscape, recreational and ecological quality of the Green Wedges at Calderstones / Woolton and Otterspool by:

i

not granting planning permission for proposals for new development that would affect the predominantly open character of the Green Wedges or reduce the physical separation between existing built up areas;

ii

requiring that, where new built development is permitted (including conversion or extension) such development:

•

has regard to the openness of the Green Wedge and the purposes of including land within it;

•

should be in accordance with the criteria set down in policy HD18 and, in particular, uses materials and built forms sympathetic to the character of the area;

•

retains existing vegetation and special site features where appropriate; and

•

provides and maintains a high standard of landscaping

iii retaining its own land in predominantly open use and supporting proposals which would:

•

enhance tree cover by the retention of existing trees and replacement of older trees where necessary;

•

enhance the recreational role of the Green Wedges; or

•

offer uses and activities which accord with their open character, particularly those that secure the continued use of sports grounds surplus to the owner’s requirements, for open space purposes.”

Like other policies in the UDP, policy OE3 is supplemented by supporting commentary, to which I was referred in the course of argument. I was also taken to other parts of the UDP for the purpose of context.

In the second section of the “Officer Assessment” part of the OR, the author considered the impact of the proposed development on “Green Wedge” and “Green Space”. It is common ground that the application site is land designated as green wedge and green space land, under the UDP. The OR noted that policy OE3 (and OE11) applied and that these “seek to protect the site from inappropriate development”.

The author of the OR considered that it was therefore “necessary to carefully assess

The OR reasoned that “this part of the Green Wedge is of a different character to

The OR went on to say that where development in the green wedge is appropriate, it should have regard to the openness of the green wedge and the purposes of including land within it. A long explanation followed of why, in the author’s view, the development would be appropriate although it involved built development.

It would, the author said, provide a valuable amenity for many people, diverse recreational facilities and a mature ecological environment for wildlife; it would contain buildings of historic, architectural and educational interest; it would give the appearance of a “parkway” approach along particular transport routes; and, overall, relocation of the proposed uses would “maintain and enhance what are diverse recreational offers…”.

The author then turned to green space policy, which is the subject of policy OE11; and noted that there was an overlap between green wedge and green space policy. For present purposes, I do not find it necessary to trace what was said in the OR separately about green space, save that the author concluded at the end of the second section of the assessment “that the proposal complies with the aims and objectives of saved policies OE3 and OE11 of the UDP”.

It is therefore common ground that the LPA found no conflict between the development proposals and policy OE3. The question is whether the LPA went wrong in law in reaching that conclusion.

In support of LOGS’ argument that the LPA did misinterpret policy OE3 and was bound in law to find the proposal conflicted with it, Mr Streeten’s main submissions can be summarised as follows:

For the LPA, Mr Tucker’s opposing submissions can be summarised as follows:

For the developer, Mr Manley supported the LPA’s position, also defended the approach in the OR and made some further points which I can summarise as follows:

I come to my reasoning and conclusions on this ground. In my judgment, Mr

That interpretation would denude the protection of the green wedge which OE3 is there to ensure. It fits ill with the opening words of OE3 which, notably, govern all, not just some, of the subparagraphs i, ii and iii which follow. If built development were permitted under ii where prohibited under i, I would expect to see clear words making the requirements of i and ii alternative rather than cumulative. I do not think OE3 ii permits planning judgment to allow what is prohibited under i.

I therefore accept Mr Streeten’s submission that the conflict with OE3 i here had to be openly acknowledged and expressly taken into account. It could not be wished away. It is indisputable and not disputed that these proposals would affect the open character of the green wedge land within and around the application site, whether or not “open character” here is equated to “openness” in green belt cases.

I also think Mr Streeten is right to say that the green belt cases on which he relies (and the Lensbury case dealing with metropolitan open land with a status equivalent to green belt land) are relevant. I accept that green belt land and green wedge land differ in some respects, as pointed out. But because both are verdant, they share the quality of openness or open character. I reject the proposition that because openness is a term of art in planning law, open character is qualitatively different from openness.

Neither the English language nor the natural wording of OE3 support that rigid distinction, which only a legal pedant would draw. Land which is open has an open character and also the quality of openness. Undermining the open character of land undermines its openness. Mr Streeten is also right that GEN2 points to what green belt and green wedges have in common: their greenness, safeguarded by protection against inappropriate development, though not in precisely the same way.

In my judgment, the territory of OE3 ii is narrow and it must be read narrowly to avoid diluting the protection of OE3 i. Built development under OE3 ii may sometimes be permitted without violating the protection of OE3 i. Examples of building works that do not, or not necessarily, violate OE3 i are given in OE3 ii itself: conversions and extensions. One can think of other examples: a dilapidated fountain replaced by a new one; a cemetery, perhaps; or a newly built grotto hidden behind trees.

I accept that the verb “affect” in OE3 i should be read as “adversely affect”; a proposition from which none of the parties dissented. I do not, however, accept that LOGS’ interpretation is internally inconsistent because it means development can be prohibited and permitted at the same time. I do not think that is right. Development may be permitted under ii where it does not conflict with i, as in the examples just given. Development may also, as in the present case, conflict with i but not ii. Where that is so, the conflict with i is not prevented by the absence of a conflict with ii.

In such a case, the LPA must, as Mr Streeten says, face up to the conflict and, if it decides to proceed, address itself under section 38(6) of the Planning and Compulsory Purchase Act 2004 to the incongruity between the development proposal and the development plan. If, exceptionally, the authority decides to proceed nonetheless, it must do so for good reason and in full knowledge and

It follows from that analysis that the OR was wrong, without first acknowledging a

I therefore uphold this ground of challenge. Again, I will consider later whether that conclusion should nonetheless not lead to any relief being granted, in the light of section 31(2A) of the Senior Courts Act 1981.

The second ground of complaint is that the LPA wrongly proceeded on the basis that no part of the application site for the residential development fell within Calderstones Park. That is said to be a material error of fact. In the skeleton argument of LOGS the proposition was also said to be “irrational”, but that epithet does not add anything of significance to the complaint of material factual error.

Mr Westaway submitted that the description of the site as effectively not a “park” in any real sense, was misleading and that the error was material and fulfilled the requirements identified in E. v. Secretary of State for the Home Department, as applied in the planning context by Gilbart J in Watts. He also cited as an example of a similar error the decision of the Court of Appeal in R (Loader) v. Rother DC [2016] EWCA Civ 795.

The objector’s appeal in Loader was allowed where a heritage related proposal had by mistake not been submitted for comment to the Victorian Society, a consultee that had objected to a previous related proposal. The committee was told no comment had been received from the Society, but not that the Society had, due to an error, remained unaware of the proposal. Lindblom LJ at [57] preferred to base his decision on taking account of an immaterial consideration, though he also observed that the committee “could be said to have proceeded on the basis on an error of fact”.

Mr Westaway submitted that the status of the land as a public park was an important and material consideration. The OR was wrong to state the view of the interim head of planning that “the application site does not form part of

He submitted that the formal status of the land as part of a public park was important and might have weighed with the committee. It was wrong for the OR to argue that the site did not form part of a park following a dictionary definition, due

Mr Westaway referred me to Hickinbottom LJ’s judgment in R (Friends of

Mr Tucker, for the LPA, argued that the committee was aware of the site’s location

Further, he pointed out that the committee was well aware of the history of the site and had the benefit of an acknowledgement that the site was within the boundary of “P7” on the UDP map. The question was not one of history or geography, but of current land use and public access. There was no evidence that if permission were refused, the public would gain better access to the site. It was for the committee to decide what weight to place on the objection founded on park status and the historic uses of the site.

Mr Manley, for the developer, submitted that the issue of park status was fully considered and fairly dealt with in the OR. The author properly referred to part of the application site being within the “P7” boundary, but fairly rejected the proposition that the parts not accessible to the public could not realistically be said to function as a park. He reminded me that the members had undertaken a site visit and could see for themselves that parts of the site did not function as a park.

Mr Manley also pointed out that there are no “park specific” policies in the UDP which add anything to the policies dealing with open spaces; thus, the status of the site as park or otherwise was “an arid point”. Furthermore, the question of park status played no material part in the decision; therefore, the fourth requirement identified in E. v. Secretary of State for the Home Department and by Gilbart J in Watts, was not met.

In my judgment, Mr Westaway’s complaint is arguable and I would grant permission to advance this ground of challenge. I do not accept that the point should be regarded as arid, technical and of minor or no substance. If, on a fair reading of the OR, the committee was told that this was not a park in any sense, i.e.

Furthermore, the treatment of the park issue in the OR is unsatisfactory. The relevant heading is: [d]oes the site constitute part of Calderstones Park? The question is thus properly and squarely raised. The LPA and the developer are right

The OR then stated that while identification of the site as part of “P7” “does not comprise a statement of policy”, it was “explanatory material” which “simply has the status of a material consideration”. Having described the consideration as “material”, the author then dismissed it as a factor meriting no weight. This was because, the author reasoned, it did not function as a park and was not a real park.

I do not think that dismissive approach to the issue, including use of a dictionary definition, was an adequate explanation of the status of the site in law. Mr Westaway is right to observe that status as a park carries with it the notion of land held in trust for public use and enjoyment. I therefore disagree with the bald statement “the application site does not form part of Calderstones Park, nor does its reference in schedule 8.3 of the UDP connote any policy status”.

Having said that, I accept the point then made in the OR that the UDP does not contain any policies specific to parks, beyond those relating to green spaces generally, which include parks. I also accept that, despite the unfortunate presentation of the issue in the OR, the committee were alive to all relevant points in the debate and were able to make up their minds from their own knowledge and experience.

So I do not consider that the committee members were materially mislead, even though the OR should have made the point clearly that a park is different from ordinary private land. Even had they been materially misled, I think it is highly likely that the decision would not have been any different in consequence. The members went on a site visit and could see that the site was in the middle of parkland, as they no doubt already knew.

For those reasons, I grant permission to advance the second ground of challenge, but I dismiss it, and turn to the remaining grounds.

The third ground of challenge is that the LPA wrongly excluded from consideration

LOGS complains that those policies require the LPA to consider and take into account recreational use of the site. The OR, Mr Westaway submitted, wrongly stated that the site was “not publically accessible”; the stables are only available to a “specific user group”. The application site, it was said in the OR, “does not currently represent an amenity for a large number of people”.

Mr Westaway submits that this overlooks the evidence in the village green application to the effect that there has been continuous unimpeded access without force, secrecy or permission for many years, for walking, riding, fruit picking and children’s play. That application was, he complains, dismissed in the OR as “not a material consideration”.

In ground 4, complaint is made that the LPA wrongly relied on the benefits of

In my judgment, HHJ Davies was right to refuse permission to advance these two closely related grounds. The characterisation of the village green application as immaterial did not matter; it was not before the LPA for determination. What mattered was consideration of public amenity and recreational use of the park and the likelihood of continued recreational use of facilities through relocation.

It was a matter for the LPA to judge the likelihood of the facilities being successfully relocated. It was a condition of the planning permission that the developer should enter into an agreement under section 111 of the Town and Country Planning Act 1990 for the provision of sums to provide for the relocation and that the relevant phases of the development would not proceed until that had been done.

Both the LPA and the developer argue that I must refuse relief because, in the

The LPA submitted in its written skeleton that even if the “shortcomings” alleged in the drafting of the OR were present, it “placed all relevant matters before the committee” and “this was a contentious application where issues and planning merits were well-ventilated”. The difficulty with that submission is that, had I accepted that such was the position, I would probably have found no material error leading to unlawfulness in the decision to grant planning permission; and the argument under section 31(2A) would not have arisen.

The developer added in its written skeleton the submission that the site is “part of

I do not accept that submission. I do not know what the outcome would have been if the decision had been lawfully taken. The conduct complained of was not cosmetic or insignificant. Nor was the decision an easy one for the LPA. The

For completeness, I should say that if I had found that the only flaw in the decision (i.e. the “conduct complained of”) was the description of the application site as not having the character of a “park”, I would have accepted the argument that absence of that conduct would have been highly likely to have produced the same result and I would have been obliged to refuse relief.

However, that is not the position. I am not satisfied the section 31(2A) test is met. There is no other basis for withholding relief. I will therefore quash the two planning permissions.