Campaign To Protect Rural England (CPRE), R (On the Application Of) v Dover District Council

A planning obligation may lawfully support permission for a composite development where its benefits have a real connection with the development as a whole. The decision-maker may balance the advantages of one element against the disadvantages of another. Under regulation 122 of the Community Infrastructure Levy Regulations 2010, the obligation must be necessary to make the development acceptable in planning terms, directly related to it, and fairly and reasonably related in scale and kind. Whether a scheme is composite is a planning judgment reviewable on ordinary public law grounds. A failure to publish a statutory statement of reasons does not necessarily invalidate permission where the reasons can readily be discerned from the decision-making materials.

CGI applied for permission for a composite development at Farthingloe and Western Heights in Dover, including housing, a hotel and conference centre, access works, and restoration of the Drop Redoubt. The local planning authority approved the scheme subject to a section 106 agreement, including a £5 million heritage contribution.

CPRE sought judicial review on grounds concerning the lawfulness of the contribution, the reasons for treating the development as exceptional within an area of outstanding natural beauty, the council’s housing land supply, and an alleged subsidy. The court granted permission to apply for judicial review but rejected all grounds and refused permission to amend the claim.

1. Composite development and planning obligation. The council was entitled to treat the Farthingloe and Western Heights proposals, together with the intervening access land and associated heritage works, as one composite development. That judgment was reviewable only on standard public law grounds and was not unlawful.
2. The approach was consistent with Sainsbury's Supermarkets Limited v Wolverhampton City Council [2010] UKSC 20. In a composite scheme, the financial dependency of one part on another and their physical proximity may establish a sufficient nexus. The heritage contribution therefore satisfied regulation 122: it was necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind.
3. Reasons and exceptional circumstances. Although the authority had not complied with regulation 24(1)(c) of the 2011 Environmental Impact Assessment Regulations, its reasons could be discerned from the committee minutes. The councillors had considered whether the environmental and landscape harm could be moderated and rejected a density reduction because it risked the regeneration and heritage benefits. The statutory assessment required by paragraph 116 of the National Planning Policy Framework was therefore undertaken.
4. Housing supply. The council did not misdirect itself by referring to the lack of a five-year housing land supply. The officers’ reference to giving that factor greatest weight was qualified as being from a housing-delivery perspective and did not dictate the committee’s overall planning judgment. The latest annual monitoring assessment was a reasonable yardstick, given the evidence-intensive nature of the exercise and the guidance that it should ordinarily be conducted annually.
5. Fifth ground and order. The proposed hotel was not essential to the remainder of the scheme or to funding the heritage contribution. Its possible subsidy was consequently not a material planning consideration requiring the decision to be quashed. Permission to amend was refused, the claim was dismissed, costs were capped at £10,000, and permission to appeal was refused.