Stinging Defeat for Kit Kat in Surrey AONB case

The Judge had a field day on this one 

THE QUEEN on the application of Claimant
CHERKLEY CAMPAIGN LIMITED – and -MOLE VALLEY DISTRICT COUNCIL Defendant – and ­LONGSHOT CHERKLEY COURT LIMITED

The first two paras.

This case engages the fundamentals of planning law. By its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community as a whole. As Sir Malcolm Grant said in his seminal book, Urban Planning Law (1982 edition at p. 6): “The planning system… is created as an instrument of government, as a means of restricting private land use rights in the interests of the community as a whole.” Sir Malcolm Grant also observed that planning law prescribes the procedures – or sets the battle lines – for the resolution of conflict over land use “between the interest of private property and the prevailing “public” or “community” interests”” (ibid, p. 1).
His words are as relevant today as they were 30 years ago.
2. This case concerns a conflict between private developers and public campaigners. The developers seek planning permission to develop exclusive private golf and hotel facilities in the scenic setting of the Surrey Hills. The campaigners wish to prevent such a development in protected landscape of national importance. Much of the legal argument revolved around whether a “need” for further golfing facilities could be demonstrated as required by the policy matrix. The developers argued that proof of private “demand” for exclusive golf facilities equated to “need”. This proposition is fallacious. 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.

The case turned on the issue of need

It was, initially, accepted by all parties at the permission hearing and on the first day of the substantive hearing before me, that Longshot had to demonstrate a “need” for further golf facilities in the particular location pursuant to policy REC12 of the Mole Valley Local Plan….However, Mr Katkowski QC, Counsel for Longshot, pulled a couple of surprise
clubs out of his bag on the second day of the hearing and sought to argue:
18R (oao) Cherkley Campaign Ltd -v- Mole Valley DC (Def) Longshot Cherkley Court Ltd (Int)

(1) First, the requirement to demonstrate “need” in the paragraph 12.71 of the Local Plan amounted to “policy” and not “reasoned justification” for policy and, accordingly, fell foul of paragraph 24 of Annex A of PPG12 and was,
therefore, unlawful and of no effect;
(2) Second, in any event, the Secretary of State only had power under paragraph 1(3) of Schedule 8 the 2004 Act to direct that “policies” be saved, and since Paragraph 12.71 of the Local Plan was not in fact or in law “policy”, it had not been, and was not capable of being, “saved” and it no longer existed in law.

The judge ruled

the effect of the transitional legislative provisions is clear: no party may now question or challenge the legality of the Mole Valley Local Plan, or any part thereof. It is too late. A decade has passed since adoption. Accordingly, Longshot can no longer challenge the validity of the Local Plan.

On what is saved

My reasons for rejecting Mr Katkowski QC’s [only the policy is saved] alternative as follows. First, it makes no sense to preserve naked “policies” shorn of their intellectual underpinning, interpretative context and expressly factual matrix and justifications. It makes even less sense to seek to preserve the stark wording of policies only, but then somehow proscribe any resort in the future to any “map” 24R (oao) Cherkley Campaign Ltd -v- Mole Valley DC (Def) Longshot Cherkley Court Ltd (Int) or “reasoned justification” or “other descriptive or explanatory matter” or
“supporting text” which it was intended by the framers of the policy hould be had as a necessary aid to understanding, interpreting and implementing the policy. In my view, there is no conceptual difficulty in saving only “the policy” but permitting, and expecting, consideration of it in its appropriate textural context.

On need please read the full judgement however here are some edited highlights.

the fact that people from further afield (i.e. from London, the home counties or even abroad) may understandably have a desire to play golf in the rolling hills of Surrey, is irrelevant. But, in my view, the interests of the immediate community which the Mole Valley District Council serves is a more important component of the meaning of “need”. This is also consonant with what I perceive to be the general thrust of planning law.

Mr Justice Haddon_cave now really gets into his swing

In my judgment, the word “need” in paragraph 12.71 means “required” in the interests of the public and the community as a whole, i.e. “necessary” in the public interest sense. “Need” does not simply mean “demand” or “desire” by private interests. Nor is mere proof of “viability” of such demand enough. The fact that Longshot could sell membership debentures to 400 millionaires in UK and abroad who might want to play golf at their own exclusive, ‘world class’, luxury golf club in Surrey does not equate to a “need” for such facilities in its proper public interest sense. …

The requirement to show “need” for further golf facilities to be built in protected landscape could not be side-stepped by resort to an argument that this golf course was going to be
über-exclusive. It was still a golf course.

It did not help that Surry has the highest concentration of Golf Courses in the UK and that there are 627 Golf Coures within 20 miles of the site.

The Council decision-makers should have asked themselves whether the applicant, Longshot, had demonstrated a real “necessity” or “requirement” for a further golf course in the Surrey Hills…The Council majority failed to understand the tension inherent between the concepts of “exclusive demand” and “public need”.

On the NPPF issue

Paragraph 116 of section 11 of the NPPF provides that “Planning permission should be refused for major developments in these designated areas…”. The NPPF does not define “major developments” but, in my view, it clearly covers  something on the scale of an 18-hole golf course. Mr Findlay QC and Mr Katkowski QC submitted that, since only a small proportion of the proposed golf course (the 15th fairway and 16th tee) would actually be located within the designated AONB, paragraph 116 of Section 11 of NPPF had no application. A tee and a fairway could not be described as a “major development” in an AONB.

Mr Katkowski QC sought to side-step paragraph 116 of the NPPF by arguing that, since the Council majority (a) rejected the conclusion that the development was harmful to the landscape and (b) was ‘mindful’ of the benefits that the scheme would bring, no error of law arose. In my view, this is heretical. Absence of harm does not obviate the need to apply the paragraph 116 “exceptional circumstances” or “national interest” tests

in my judgment, the Council majority failed to consider whether there were “exceptional circumstances” or “public interest” reasons justifying allowing this development
to take place in the protected landscape of the Surrey Hills AONB and AGLV and therefore, failed to comply with paragraph 116 of the NPPF ground.

All of this goes to the issue as to whether adequate reasons were given.  OIf course the need to give reasons when granting permission have now been abolished.  This still does not preclude such challenges in the future, it may even make them easier as the LPA will have no contemporaneous record about what material considerations were given to outweigh planning policy and why the decision was not perverse.

The is the first major AONB Dower Test case since the NPPF.  What bearing does it have on other cases such as Tetbury where the SOS has granted consents acknowledged to be harmful.  Very little as the SOS was clear to state that exceptional circumstances in the national interest applied.  If however such concents become ‘normal’ under the NPPF how can they be ‘esceptional’.

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5 thoughts on “Stinging Defeat for Kit Kat in Surrey AONB case

  1. Pingback: Andy Murrey Loses 1/2 million in Kat-Kat AONB case | Decisions, Decisions, Decisions

  2. Pingback: CPRE – Valued Landscapes Being Vandelised – So why dont they JR Decisions? | Decisions, Decisions, Decisions

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