Chalfont St Peter Parish Council, R (On the Application Of) v Chiltern District Council

In judicial review of a planning decision, an alleged mistake of fact is an error of law only where there is a mistake about an existing fact or the availability of evidence, and the fact or evidence is established because it is uncontentious and objectively verifiable. Conflicting evidence placed fairly before the planning committee does not satisfy that test.

A local planning authority may interpret broadly worded development-plan policies and assess the realistic likelihood of an alternative use continuing or being secured. It need not preserve an existing use merely because that use remains theoretically possible. In a contest between competing uses, the authority may consider whether refusal would probably result in the land being put to the alternative use.

The claimant sought judicial review of Chiltern District Council’s decision granting outline planning permission for a mixed-use redevelopment of the former Holy Cross Convent School site, including up to 198 dwellings, a care home, open space and relocated playing fields.

Permission to proceed was granted on two alleged errors of law: first, that the council had misunderstood the extent of the site’s playing fields; secondly, that it had failed to consider retention of the existing site for educational or other community use. The central issues were whether the alleged factual error met the judicial-review test and whether the council had lawfully applied its local-plan policies concerning sports facilities and community services.

1. The claim was dismissed. The planning committee had considered the competing evidence about the extent of the playing fields, including Sport England’s objections, photographs and policy arguments. The evidence was conflicting and therefore not an established, uncontentious and objectively verifiable fact. Applying E. v. Secretary of State for the Home Department [2004] EWCA Civ 49, there was no reviewable error of fact.
2. The definition of “playing field” in article 10(2) of the Town and Country Planning (General Development Procedure) Order 1995 was directed to consultation purposes and was unhelpful as a legalistic basis for determining the extent of playing fields in a planning application. That issue was fact-specific. The council was entitled to conclude that the proposal complied with its sports-facilities policy.
3. The council was entitled to adopt a broad interpretation of policy CSF2 concerning the loss of community facilities. The policy did not require like-for-like replacement. The council could compare the redundant former private-school buildings and their lack of current use with the facilities proposed by the development. This was consistent with the approach explained in Tesco Stores Limited v. Dundee City Council [2012] UKSC 13.
4. In considering possible educational use, the council could assess the likelihood of that use occurring in light of the available information, including the school’s closure and the absence of plans by the local education authority to acquire the site. In accordance with Westminster City Council v. British Waterways Board [1985] AC 676, refusal based solely on preserving an alternative use required at least a balance of probability that the land would in fact be put to that use.
5. The officer’s report fairly and lawfully addressed the relevant policies and the possibility of retaining the existing use. The parties were left to agree consequential orders, including costs.

First-instance judicial review. The judgment does not state any prior appellate decision in the same proceedings.