Council wins appeal over quashing of golf course planning permission

May 9, 2014

A local authority and a developer have won their appeal over a High Court ruling that quashed planning permission for a controversial hotel and golf complex in the Surrey Hills.

Mole Valley District Council granted planning permission in September 2012 to Longshot Cherkley Court Limited to develop Cherkley Court and the 380-acre Cherkley Estate, near Leatherhead.

Cherkley Court is a Grade II listed French chateau style property that dates back to 1894. It was once the country home of the Beaverbrook family.

In August 2013 Mr Justice Haddon-Cave upheld a challenge by the claimants, Cherkley Campaign, on three grounds:

A failure to demonstrate ‘need’ for further golf facilities in breach of Policy REC12 in Mole Valley’s local plan;
Breach of policies on protected landscape;
Breach of Green Belt policy requirements.

On the issue of the need for further golf facilities, the High Court judge said: “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 golf club, the less public need is demonstrated. It is a zero sum game.”

Both the council and Longshot appealed and this week the Court of Appeal found in their favour, reinstating the planning permission and setting aside the judge’s quashing and costs orders.

In Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor [2014] EWCA Civ 567 Lord Justice Richards said he had initially been disinclined to interfere with Mr Justice Haddon-Cave’s ruling, but had been persuaded by submissions on behalf of the appellants.

The Court of Appeal judge agreed – amongst other things – with the appellants’ submission that, even leaving aside a saving direction, the local plan contained no requirement to demonstrate need. On its proper construction, Policy REC12 contained no such requirement.

Lord Justice Richards said that if, contrary to this finding, Policy REC12 was to be read as containing a need requirement, “it was an unexacting requirement and was capable in principle of being met by demonstrating an unmet demand for an elite facility of the type proposed”.

On the question of whether the council’s conclusion on need was rational, the Court of Appeal judge said: “If in this context ‘need’ has the broader meaning that I favour, so that it can in principle be demonstrated by evidence of an unmet demand for the type of facility proposed, then in my view the summary of reasons given by the majority of the Committee for finding that need had been demonstrated discloses no error of law and the finding itself was reasonably open on the material available to members.”

Lord Justice Richards also found that:

A statement in the local plan that future golf proposals should be “directed away” from the Area of Outstanding Natural Beauty and the Area of Great Landscape Value was not a policy requirement of the plan and that in the absence of a policy requirement the reference to it in the relevant paragraph did not convert it into a material consideration. “Policy REC12 contained provisions aimed specifically at the protection of the landscape. In my view those provisions were taken properly into account by the majority of the Committee....” There was no error of law disclosed by the absence of reference to ‘directing away’ in the summary of reasons.
Paragraph 116 of the National Planning Policy Framework, which is concerned with the conservation and enhancement of the natural environment, did not apply. “I do not think that the creation of one fairway and one tee of a golf course could reasonably be regarded as a major development in the AONB, even when account is taken of the fact that they form part of a larger golf course development the rest of which is immediately adjacent to the AONB.”
The officers gave strong, evidence-based advice that the development would have a detrimental impact on the landscape but did not go so far as to suggest that the expert evidence pointed unanimously and unequivocally in that direction or that the contrary view was not reasonably open to members. Lord Justice Richards said he was “not persuaded that the weight of evidence and advice was such as to leave no room for members rationally to conclude as a matter of planning judgment, in the light of all the written material and what they had seen on their site visit or visits, that the overall landscape character would not be compromised”. The High Court judge had therefore been wrong to find that the conclusion reached by the majority of the committee had been perverse.
Taking everything together, he was persuaded that the majority’s decision did not involve any error of law in relation to the ‘conserving and enhancing’ aspect of Policy REC12.
The High Court judge’s criticisms of the majority’s decision and reasons concerning the applicability of the Green Belt policy to the buildings were unfair to the majority. “Although the reasons do not use the language of the policies, it seems to me that the proper inference to be drawn is that the majority had concluded that, to the extent that there would be inappropriate development, there existed very special circumstances that clearly outweighed the harm.” The majority of the committee could not be said to have fallen into legal error in concluding that there existed these circumstances.
He could not agree with Mr Justice Haddon-Cave that there was an unlawful deficiency of reasons – “whether in relation to the issues individually or when reads as a whole” – when the majority granted the planning permission contrary to the officers’ recommendation.

Yvonne Rees, chief executive of Mole Valley, said: "The appeal raised a number of important planning principles which are of significant interest to other planning authorities across the country. Such a decision reinforces the validity of the decision-making process that MVDC undertook."

Ian Todd, Director of Longshot Cherkley Court, said: “From our point of view the Court of Appeal judgment and the overwhelming support from the local community have only strengthened our resolve to deliver a project, of which, the Mole Valley residents can be justifiably proud.”

According to a report in the Epsom Guardian, the Cherkley Campaign will seek leave to appeal to the Supreme Court.

Richard Buxton, solicitor for the group, told the newspaper: "This case raised fundamental questions about decision making affecting the environment and paves the way for a completely unaccountable free-for-all, even in relation to decisions about large developments which are supposed to be subject to strongest rules relating to assessment of environmental impact and transparent decision making.

"[Cherkley Campaign Limited] is considering an appeal to the Supreme Court to review whether the process adopted by the council, firmly struck down by the High Court, but now endorsed by the Court of Appeal, really does meet the standards the law requires.”

Buxton added: “At stake are not only areas of parkland which have already been substantially damaged by the golf course construction, but which the developers had undertaken to restore if the decision went against them, but also an area known as ‘the Forty Acre Field’ which is partially inside the existing AONB and which is of high ecological value.

"The developers are being asked to be responsible and at least not do any work on the Forty Acre Field until the position is clarified."