Chalfont St Peter Parish Council v Chiltern District Council

An environmental report need evaluate only reasonable alternatives. A proposal which lacks necessary support, funding, agreement from landowners and a viable delivery plan is not a reasonable alternative merely because it may offer qualitative benefits.

Planning reasons are adequate if, read fairly and as a whole, they explain the decision on the principal controversial issue and cause no substantial prejudice. A material-error-of-fact challenge requires an established, uncontentious and objectively verifiable fact. The extent of a playing field in mixed open land may instead be a matter of planning judgment.

A policy protecting community facilities required like-for-like replacement only where the existing facility, or a comparable community use, was still needed.

The Parish Council challenged two decisions concerning a former convent-school site. The District Council had granted planning permission for housing, a care home, a sports pitch and retention of a chapel. It later adopted a Core Strategy allocating the site for strategic housing.

The Parish Council promoted a land-swap proposal. It would relocate the overcrowded Church of England school to part of the former convent-school site and redevelop the existing school site for housing. It contended that the proposal should have been assessed as a reasonable environmental alternative. It also challenged the Inspector’s reasons, the treatment of playing fields, and the interpretation of a local-plan policy protecting community facilities.

HHJ Richard Foster dismissed the statutory Core Strategy challenge in [2013] EWHC 1877 (Admin) and the judicial-review challenge to the planning permission in [2013] EWHC 2073 (Admin).

1. Both appeals were dismissed. The land-swap proposal was not a reasonable alternative requiring assessment under Article 5(1) of Directive 2001/42/EC and regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004. Although the proposed school would have qualitative benefits, the education authority would not fund relocation, the owners had not agreed to sell land for it, and there was no adequate business plan, valuation, financing proposal or assessment of housing capacity. The proposal was therefore not viable or deliverable.

2. The Inspector’s report did not expressly address the qualitative case for relocation and that omission was regrettable. Read with the parties’ knowledge of the process, the Inspector’s post-hearing question and the education authority’s evidence, however, the report sufficiently conveyed that finance was unavailable and the scheme could not proceed. Alternatively, the Parish Council suffered no substantial prejudice. The reasons standard in South Bucks District Council v Porter (No 2) [2004] UKHL 33 was satisfied.

3. The planning committee made no reviewable material error of fact about the playing fields. Under E v Secretary of State for the Home Department [2004] EWCA Civ 49, the alleged fact had to be established, uncontentious and objectively verifiable. The evidence about the extent and use of the open land was conflicting. Whether parts of mixed open land amounted to a playing field for local-plan Policy R2 required planning judgment. The definition in Article 10 of the Town and Country Planning (General Development Procedure) Order 1995, which served a consultation regime, did not govern that policy.

4. On the community-facilities policy, Moore-Bick and Briggs LJJ formed the majority. Policy CSF2 required consideration of the particular facility to be lost. If it remained needed, replacement had to be like for like or broadly equivalent for the relevant community use. Beatson LJ would have construed the policy more broadly. The committee had been advised on an erroneous construction, but no different outcome was possible: the redundant convent and school buildings were not needed for their former use or another community use. The condition in Policy CSF2(ii) was satisfied, so no remittal or quashing was warranted.

• Court of Appeal (Civil Division). Dismissed the Parish Council’s appeals against the dismissal of its statutory challenge to the Core Strategy and its judicial-review challenge to planning permission.
• High Court, Queen’s Bench Division, Administrative Court. HHJ Richard Foster dismissed the section 113 challenge to Policy CS6 on 3 July 2013: [2013] EWHC 1877 (Admin) .
• High Court, Queen’s Bench Division, Administrative Court. HHJ Richard Foster dismissed the judicial-review challenge to the grant of planning permission on 17 July 2013: [2013] EWHC 2073 (Admin) .