Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor

A local plan’s supporting text assists interpretation of its policies but cannot impose an additional policy requirement. Saving an existing policy preserves supporting text relevant to its interpretation, maintaining its meaning and effect. Planning policies are interpreted objectively in context; their application may require planning judgment, reviewable for irrationality. A requirement of need can, depending on context, encompass unmet private demand. The stringent national policy for major development in designated landscapes applies to development within the designated area. Landscape judgments require assessment of the available evidence, including mitigation and benefits. Reasons for granting permission must be read contextually with officers’ reports. They may demonstrate application of the correct policy test without repeating its wording, including the Green Belt test of very special circumstances.

Longshot Cherkley Court Limited obtained planning permission from Mole Valley District Council to develop Cherkley Court and its estate into a hotel and spa complex with an exclusive golf course. The estate lay within the Green Belt and an Area of Great Landscape Value. One fairway and one tee of the proposed course lay within an Area of Outstanding Natural Beauty. The council’s Development Control Committee granted permission by ten votes to nine, contrary to officers’ recommendations, and supplied a lengthy summary of reasons.

Cherkley Campaign Limited challenged the permission by judicial review. Haddon-Cave J quashed it in [2013] EWHC 2582 (Admin), finding errors concerning development-plan requirements, landscape impact, Green Belt policy and reasons. The council and developer appealed against the quashing order and the related costs order. The central questions concerned the relationship between local-plan policies and supporting text, the scope and application of national planning policies, and the lawfulness of the committee’s judgments and reasons.

The main appeals were unanimously allowed. Richards LJ’s reasoning was agreed by Underhill and Floyd LJJ.

1. The detailed policies of a local plan governed assessment of conformity with the plan. Supporting text supplied explanation and justification and assisted interpretation. It had no independent policy force and could not add requirements absent from the policy. Policy REC12 therefore imposed neither a requirement to demonstrate need nor a requirement to direct golf courses away from designated landscapes. The saving provisions of the Planning and Compulsory Purchase Act 2004 preserved supporting text relevant to interpreting a saved policy, ensuring continuity of meaning. Neither disputed requirement arose independently as a material consideration in these circumstances (paras 16–24, 36–38).

2. Alternatively, any need requirement arising from the supporting text was capable of being satisfied by unmet demand for the proposed type of facility. The public-interest purpose of planning control did not require need to mean necessity for the local community. It could encompass private demand from a national or international market. Applying the distinction between policy interpretation and planning judgment in Tesco Stores v Dundee City Council [2012] UKSC 13, the committee’s finding of need was rationally open on the material before it. Rationality had to be assessed by reference to that material (paras 25–35).

3. Paragraph 116 of the National Planning Policy Framework addressed major development within a designated area. Proximity or visual impact did not bring development outside that area within its stringent conditions. One fairway and one tee could not reasonably constitute major development within the Area of Outstanding Natural Beauty, even taking account of the adjoining course. The wider development’s landscape effects remained relevant under other policies (paras 42–45).

4. The committee’s landscape assessment was rational. Members were not bound by expert opinions or officers’ recommendations. The evidence contained competing assessments, and members had inspected the site. Change and mitigation were compatible with an overall assessment that development conserved and enhanced the landscape. The court left open whether the policy required conservation and enhancement conjunctively (paras 47–56).

5. The Green Belt policy imposed no need requirement upon the golf course, which all parties accepted was appropriate development. Read with the officers’ reports, the reasons showed that members had applied the very special circumstances test to inappropriate buildings. Repetition of the policy’s wording was unnecessary. Openness informed the extent of harm, and economic and visitor benefits could contribute to considerations clearly outweighing that harm (paras 63–65).

6. The reasons were adequate individually and as a whole. A fuller summary might be necessary when members departed from officers’ recommendations, but the duty remained contextual and limited. Reasons had to explain the grant rather than provide reasons for every rejected representation. The lengthy summary identified policy compliance and addressed officers’ concerns (paras 66–71).

The quashing order and related costs order were set aside. The separate costs appeals consequently fell away. Written submissions on the main appeals’ costs were permitted if agreement could not be reached (paras 72–75).

• Court of Appeal (Civil Division): In [2014] EWCA Civ 567 , unanimously allowed the council’s and developer’s main appeals and set aside the quashing order and related costs order. The separate costs appeals fell away.
• High Court, Administrative Court: Haddon-Cave J, in [2013] EWHC 2582 (Admin) , upheld the judicial review challenge and quashed the planning permission by order dated 22 August 2013. A related costs order was made on 15 November 2013.