Cherkley Campaign Ltd, R (on the application of) v Longshot Cherkley Court Ltd, Court of Appeal - Administrative Court, August 22, 2013, [2013] EWHC 2582 (Admin)

Resolution Date:August 22, 2013
Issuing Organization:Administrative Court
Actores:Cherkley Campaign Ltd, R (on the application of) v Longshot Cherkley Court Ltd
 
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Neutral Citation Number: 2013 EWHC 2582 (Admin)

Case No: CO/13600/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 22nd August 2013

Before:

MR JUSTICE HADDON-CAVE

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Between:

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Douglas Edwards QC and Sarah Sackman (instructed by Richard Buxton Solicitors)

for the Claimant

James Findlay QC (instructed by Sharpe Pritchard) for the Defendant

Christopher Katkowski and Robert Walton (instructed by Berwin Leighton Paisner LLP) for the Interested Party

Hearing date: 6th , 7th & 10th June 2013

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APPROVED JUDGMENT

MR JUSTICE HADDON-CAVE: ``The planning system...is created as an instrument of government, as a means of restricting private land use rights in the interests of the community as a whole.'' (Sir Malcolm Grant, Urban Planning Law, 1982 edition, p. 6).

Introduction

Preamble

  1. This case engages the fundamentals of planning law. By its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community as a whole. As Sir Malcolm Grant said in his seminal book, Urban Planning Law (1982 edition at p. 6): ``The planning system... is created as an instrument of government, as a means of restricting private land use rights in the interests of the community as a whole.'' Sir Malcolm Grant also observed that planning law prescribes the procedures - or sets the battle lines - for the resolution of conflict over land use ``between the interest of private property and the prevailing ``public'' or ``community'' interests'''' (ibid, p. 1). His words are as relevant today as they were 30 years ago.

  2. This case concerns a conflict between private developers and public campaigners. The developers seek planning permission to develop exclusive private golf and hotel facilities in the scenic setting of the Surrey Hills. The campaigners wish to prevent such a development in protected landscape of national importance. Much of the legal argument revolved around whether a ``need'' for further golfing facilities could be demonstrated as required by the policy matrix. The developers argued that proof of private ``demand'' for exclusive golf facilities equated to ``need''. This proposition is fallacious. The golden thread of public interest is woven through the lexicon of planning law, including into the word ``need''. Pure private ``demand'' is antithetical to public ``need'', particularly very exclusive private demand. Once this is understood, the case answers itself. The more exclusive the development, the less public need is demonstrated. It is a zero sum game.

  3. Further, planning law decision-making is a process informed by policy; and the courts employ pragmatism and common sense when interpreting it (see Lindblom J in Cala Homes (South) Limited v. Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin) at paragraph [138]).

    Judicial review

  4. By these judicial review proceedings, Cherkley Campaign Limited (``the Claimant'') challenges a decision by Mole Valley District Council (``the Council'') to grant planning permission to Longshot Cherkley Court Limited (``Longshot'') on 21st September 2012 to develop Cherkley Court and Cherkley Estate, near Leatherhead in Surrey, into exclusive golf facilities together with a hotel, health club and spa. The Claimant contends that the Council's decision was legally flawed, contrary to planning policy, irrational and should be quashed.

    THE FACTS

    Cherkley Court and Estate

  5. The Cherkley Estate is in the Surrey Hills. It totals approximately 375 acres, including 195 acres of farmland. It comprises a main house, Cherkley Court, and a secondary house, Garden House, together with substantial outbuildings and cottages, all set in parkland and woodland. The whole estate is within the Surrey Hills Area of Great Landscape Value and part is also within the Surrey Hills Area of Outstanding Natural Beauty. The Estate is adjacent to the Box Hill Estate, a National Trust property, and the Mole Gap to Reigate Escarpment, a Special Area of Conservation. The Estate includes a large field of uncultivated chalk grassland known as the `40-Acre Field', which is a UK Priority Biodiversity Action Plan Habitat and has the designation criteria of a Site of Nature Conservation Importance. 40-Acre Field (on which it is proposed to put 5 golf holes) abuts an adjacent EU classified Special Area of Conservation and Site of Special Scientific Interest. The whole Estate is within the Metropolitan Green Belt.

    Cherkley Court and Lord Beaverbrook

  6. Cherkley Court is a Grade II listed building and is located to the south-west boundary of the estate. It has an interesting and distinguished history. It was originally built in the late 1870s, but had to be re-rebuilt after being severely damaged by fire in 1893. In 1911 it was purchased by the Canadian businessman, Max Aiken (later Lord Beaverbrook). It became his family home until his death in 1964 and remained his widow's home until her death in 1994. Garden House became the home of Lord Beaverbrook's son, Sir Max Aiken, in the late 1950s.

  7. In the 1960s, title in Cherkley Court passed to a charitable trust, the Beaverbrook Foundation. In 1984, the family sold off Garden House and the Estate to a Chinese businessman, but retained Cherkley Court itself. In 1998, the trust re-purchased Garden House and the Estate and re-united it with Cherkley Court again. The Beaverbrook Foundation then carried out extensive renovations to Cherkley Court and the Estate and opened its formal grounds to the public, pursuant to planning permission granted on 30th October 2003. On 7th June 2010 the Beaverbrook Foundation obtained planning permission for Cherkley Court to revert to a single family dwelling and put it up for sale for £20 million.

  8. Two private bidders wished to use Cherkley Court and Estate as a private residence but were outbid by Longshot who purchased the Cherkley Estate in April 2011. In July 2011, Longshot also purchased the adjoining Micklenam Downs Estate to the south comprising an additional 18.5 acres (also within the Surrey Area of Outstanding Natural Beauty). This acquisition brought the total planning application site up to approximately 394 acres.

    Longshot's planning application

  9. In October 2011, Longshot applied to Mole Valley District Council for planning permission to develop Cherkley Court and the Estate into a hotel and spa complex together with an 18-hole golf course. The application (MO/2011/1450) was lodged under cover of a letter dated 28th October 2011 from Longshot's planning advisors, Planning Perspectives LLP. The application sought planning permission in the following terms:

    ``The use of Cherkley Court, and its existing associated buildings as a hotel comprising guest accommodation, health club, spa and cookery school. Provision of additional floorspace to accommodate further guest rooms, underground plant and leisure uses, including an outdoor pool. Provision of an 18 hole golf course, practice facilities, clubhouse and maintenance area (underground)...''

  10. Longshot also applied for listed building consent to make alterations to Cherkley Court, but this is not part of the present challenge. Longshot submitted detailed evidence with it main planning application, including reports from its golf club consultants, 360 Golf, and various environmental, water and other technical consultants. The cost of the scheme was said to be in the region of £45 to £50 million.

  11. The proposal required a departure from the Mole Valley Local Plan and Core Strategy, and was advertised as such.

    Objections

  12. The application proved highly controversial. There were numerous objections to the proposal to turn the Cherkley Estate land on the Surrey Hills North Downs into a golf course and the proposal to turn Cherkley Court into a hotel and spa complex. Objectors included Campaign to Protect Rural England (Surrey Branch), Campaign to Protect Rural England (Mole Valley Branch), Friends of Box Hill, Leatherhead Residents Association, Micklenham Parish Council, National Trust (Polesden Lacey South East Office), Surrey Hills Board, Butterfly Conservation and Surrey Botanical Society.

    Summary of designations affecting the application site

  13. The planning and environmental designations and policies affecting the application site are legion. They can be conveniently listed in full and summarised as follows:

    (1) The whole application site lies within the Surrey Hills Area of Great Landscape Value (``AGLV''). This is a county-level designation which recognises its ``high quality landscape'' (Core Strategy, paragraph 6.4.5.).

    (2) Part of the site is within the Surrey Hills Area of Outstanding Natural Beauty (``AONB''). This is a national designation which confers the ``highest level of protection in relation to landscape and scenic beauty'' (National Planning Policy Framework (``NPPF''), paragraph 115).

    (3) The entire site is within the Metropolitan Green Belt.

    (4) The site is adjacent to the Box Hill National Trust Estate.

    (5) The site is adjacent to the Mole Gap to Reigate Escarpment Site of Special Scientific Interest (``SSSI''), a nationally important site. The SSSI is also a Special Area of Conservation (``SAC''), indicating European importance for nature conservation. There is an 800 metre buffer zone associated with the SAC which covers much of the southern half of the site.

    (6) The site includes Cherkley Wood, which is a Site of Nature Conservation Importance (``SNCI''). This is a local designation. 40-Acre Field comprises chalk grassland which is a habitat identified as Biodiversity Action Plan Priority Habitat and is considered to meet the requirements for a designation as an SNCI. The application site falls within a...

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