Langley Park School for Girls, R (on the application of) v Bromley London Borough Council [2009] EWHC 324 (Admin)

[2009] EWHC 324 (Admin)Case No CO/10206/08
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/02/2009
Before
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Between
THE QUEEN (on the application ofClaimantTHE GOVERNING BODY OF LANGLEY PARK SCHOOL FOR GIRLSClaimantBROMLEY LONDON BOROUGH COUNCILDefendantLANGLEY PARK SCHOOL FOR BOYSInterested Party
Mr Richard Langham (instructed by Messrs Kingsley Smith Solicitors LLP) for ClaimantMr John Steel QC and Mr Andrew Sharland (instructed by Director of Legal Services of the Defendant) for DefendantMr Thomas Hill (instructed by Messrs Trowers and Hamlins Solicitors) for Interested PartyHearing Hearing dates: 5 th-6 th February 2008
Judgment
[1]In these proceedings the Claimant seeks an order quashing the planning permission which was granted by the Defendant to the Interested Party on 5 August 2008. The Claimant proceeds by way of judicial review. By order dated 9 December 2003 Sir Michael Harrison directed that there should be a “rolled-up” permission and substantive hearing to be held as a matter of urgency. The Claimant relies upon two discrete grounds of challenge.[2]At the conclusion of the hearing before me I told the parties that I intended to refuse permission on ground 1, grant permission on ground 2 but dismiss the claim. I took that course because there is indeed a degree of urgency attached to this case and it seemed to me to be appropriate that the parties should know my decision, once reached, at the earliest opportunity. I also explained, however, that since the grounds raised questions of law which required careful consideration of earlier authorities I proposed to give judgment in writing. Background and Relevant Facts[3]The Interested Party (hereinafter called “the Boys School”) is the governing body of a comprehensive school which caters for boys between the ages of 11 to 16 and for both boys and girls in the sixth form. The school is situated on a site to the south of the town of Beckenham which lies within the Defendant’s administrative area. The site comprises some 6.9 hectares. The buildings upon and open spaces within the site are shown in aerial photographs within the trial bundles (see page 426 in particular). As I understand it, the Boys School has existed in this location since the 1960s. It was designed to cater for 600 to 650 pupils; it now has 1600 pupils on its roll.[4]The Claimant (hereinafter called “the Girls School”) is the governing body of a comprehensive school which caters exclusively for girls to the age of 16 but which is also co-educational in the sixth form. The Girls School is situated on an area of land which adjoins the Boys School. Its position is also shown, clearly, in the aerial photograph to which I have referred. It lies to the east of some of the buildings of the Boys School and to the south of a large open area within the Boys School which is currently used for rugby pitches.[5]On 15 June 2006 the DfES/DCSF wrote to the Defendant setting out an offer to fund the rebuilding of one school in its administrative area pursuant to a scheme known as “The Building Schools for the Future/One School Path Finder Programme.” The Defendant sought a relaxation of the mandatory requirement (that is, one school) so that other secondary schools with pressing capital needs could be involved but this request was declined. Thereafter, a process to identify the school to benefit from this initiative was undertaken. All secondary schools were invited to submit an “expression of interest”. A bid was received from the Boys School. There followed what is described as a robust selection process and at the end of that process the Boys School was chosen by the Defendant to receive funds for the building of a replacement school.[6]Formal approval for the capital project to substantially or predominantly rebuild the Boys School was given by the DfES on 23 January 2007.[7]The next step of some significance was the selection of an architectural practice to undertake a feasibility study. On 7 March 2007 Frankham Consultancy Group was chosen to undertake a feasibility study for the new school. Frankham produced its feasibility study in November 2007.[8]The study identified three possible options for the new school all of which, essentially, envisaged using the site of the existing school. In the feasibility study the options were referred to as “front of school option; rear field optionand middle site option”. In these proceedings, indeed for some time before, these options were referred to, respectively, as options 1, 2 and 3. Frankham recommended, unequivocally, that option 3 should be chosen and the Boys School accepted that recommendation.[9]It is right to say that one of the factors which influenced the decision of the Boys School was that option 3 would cause the minimum disruption to educational provision. The Defendant, as the local education authority, had informed the Boys School that it would not be possible to maintain the education of the school pupils by relocating to buildings away from the school or by housing the pupils in temporary buildings within the confines of the existing school site. Option 3 did not require such relocation; the existing school buildings could be used during the time that the new school was being built. For reference, option 3 is illustrated on page 575 of the trial bundles. Its advantages and disadvantages are assessed at page 574 of the trial bundles.[10]The Boys School suggests that from around October 2006 it had been careful to take account of the views of the Girls School since, of course, they were near neighbours. That is not a point which is necessarily accepted by or on behalf of the Girls School, but, as it happens, in my judgment nothing turns upon the details of such consultation process as did occur. What does seem clear is that on 11 February 2008 a meeting was held with some of the governors of the Girls School to discuss the Boys School preferred option namely option 3. Notes of the meeting were produced in evidence. The notes contained the following record:- “After an examinations of the plans, the governors of the Langley Park School for Girls expressed the view that they were generally satisfied with the plans as presented although this will need to be further discussed and agreed with the full Governing Body of the School. The Governors agreed to share and discuss the plans with the Governing Body”[11]The Boys School submitted an application for planning permission in April 2008. The supporting documentation referred to the three options considered at the feasibility stage. The documents demonstrated, clearly, that three options had been considered at feasibility stage but that two had been rejected by the Boys School.[12]On 22 May 2008 the Girls School put in written objections to the planning application. The objections were contained within a long and detailed letter (12 pages closely typed). The letter made various detailed criticisms of the planning proposals and, in my judgment, raised the possibility of an alternative scheme on the site. I need not dwell on the contents of the letter, given the nature of the grounds. I should however refer to those parts of the letter which suggested an alternative scheme on the site was to be preferred. I quote from paragraphs within the letter and identify which pages within the trial bundles these paragraphs appear. “The proposal in fact constitutes the least efficient use of the site…… The existing buildings include those that are three actual storeys or three storeys in height…… When combined with the footprint that must be taken into account …… it is apparent that there is adequate land within the existing built part of this site….. to provide new buildings (in what is the dismissed option 1 called “front of school”) without increasing the height from that of existing buildings. When one expunges the irrelevant planning considerations and adds the relevant planning considerations, “front of school” is the only siting option which could potentially be in accordance with the development plan, PPG2 and PPS1.”(see page 224) “More specifically in respect of the “front of school” option 1, it was rejected for unjustified reasons which can be given no material weight. Schools routinely have building works undertaken. The alleged need for four storeys is not made out by reason of the conflation of defective calculations ………….The alleged flexibility of siting in the potential configuration of built form of option 3 compared to option 1 is not accepted………. The ‘front of school’ option was the only approach that, with significant modification, might have been in accordance with the development plan.” (see page 225) “It is noted that Frankham 02 drawing admits “front of school” / “Option 1” represents the “least impact upon residential areas” yet fails to mention that this equally applies to the girls’ school and, incorrectly under “option 3” contends “least impact on…… the girls’ school …..” (see page 226)[13]In June 2008 the Council’s Chief Planning Officer prepared a detailed report to the Development Control Committee scheduled for 17 June 2008. I do not attempt to summarise the report at this stage. In so far as its contents are relevant to the grounds of challenge they are discussed in a later section of this judgment.[14]Before the meeting on 17 June an update to the report was produced by the Chief Planning Officer. This addressed a recently submitted energy report and further responses to consultation.[15]On 14 June 2008 the members of the Development Control Committee attended a site visit at both the Boys School and the Girls School. At that site meeting the members discussed the proposal with Governors of both schools. On 17 June 2008 a public meeting of the Development Control Committee took place. Various individuals made oral representations including the head teachers of both schools. It is clear that members of the Committee (and at least one other councillor) joined in the debate which took place upon the proposal. At the conclusion of the debate a vote was taken and the members voted 15 to 1 to grant the planning permission sought subject to various conditions. The minute of the meeting is in the following terms:- “Members, having considered the report, objections, representations and the advice of the acting Chief Planner, on balance RESOLVED that PERMISSION BE GRANTED (Councillor Fawthrop recorded his contrary vote) as recommended SUBJECT TO ANY DIRECTION BY THE GOVERNMENT OFFICE FOR LONDON OR THE MAYOR OF LONDON and subject to the conditions …………..”[16]The sequence of events thereafter is important to the proper consideration of ground 1 in these proceedings. I take my description of that sequence from paragraph 31 of the Skeleton Argument put in on behalf of the Defendant. No one has suggested that this paragraph is inaccurate in any material particular.[17]Following the meeting of the Development Control Committee a meeting was held between the legal, planning and committee officers who had attended the meeting on 17 June 2008. As well as attending the meeting all those officers had read the report prepared by the Chief Planning Officer for consideration by members and, of course, they had listened to the debate. The purpose of their meeting was to prepare draft written reasons for inclusion within any decision notice granting planning permission which might be issued. Either at or immediately following the meeting of officers, draft written reasons were prepared and sent to the Chair of the Development Control Committee for her approval. She approved the reasons on 30 June 2008. The draft reasons were then circulated to the members of the Development Control Committee in advance of a meeting which was to take place on 8 July 2008. At the meeting on 8 July 2008, which was a public meeting, the members of the Development Control Committee confirmed the minutes of the previous meeting on 17 June 2008 which themselves contained the reasons for their decisions.[18]On the evidence, it seems clear that if any of the members of the Committee were unhappy with the reasons as sent to them in draft or as recorded in the Minutes of the meeting of 17 June 2008 they could have said so and asked for the reasons/Minutes to be amended accordingly. It is common ground that no suggestion was made to the effect that the reasons contained within the Minutes should not be adopted. On 2 July 2008 the Defendant wrote to the head teacher of the Girls School to inform her of various enabling works that would commence on site during the summer holiday period. The Defendant invited the head teacher to a meeting to discuss such work but she declined to attend.[19]On 30 July 2008 the Mayor’s office at the Greater London Authority wrote to the Defendant stating that the Greater London Authority were content for the Defendant to determine the case itself, subject to any action the Secretary of State might take. On 31 July 2008 the Secretary of State for Communities and Local Government wrote to the Defendant stating that she had decided not to call in the planning application.[20]On 5 August 2008 the Defendant issued the planning permission in favour of the Boys School. The reasons contained within the notice issued by the Defendant were those which had been approved and which were contained within the Minutes of the meeting of 17 June 2008.[21]Enabling works were commenced on 11 August 2008. On 29 August 2008 a letter before action was written to the Defendant challenging the grant of planning permission. The Defendant responded on 9 September 2008. On 13 October 2008 the Girls School issued proceedings for judicial review. The Girls School failed to serve the Boys School as an Interested Party and, accordingly, on 27 October 2008 the Girls School withdrew the proceedings issued on 13 October 2008 and issued fresh proceedings which included the Boys School as an Interested Party.[22]Both the Boys School and the Girls School lie within an area designated as Metropolitan Open Land. For all practical purposes, planning applications for development within such a designated area are treated in an identical fashion to applications for permissions to develop areas within a green belt. Grounds of Challenge[23]In its letter before action and in these proceedings the Girls School has relied upon two bases for seeking an order quashing the planning permission. The first ground relied upon is formulated as follows. When giving written notice of a decision to grant planning permission, the Defendant is required to give a summary of reasons for its decision, pursuant to Article 22 of the Town and Country Planning (General Development Procedure) (England) Order 1995 (as amended). Mr. Langham submits that although the summary reasons have to be published only when the notice of the decision is given, the reasons must be the reasons which led to the decision to grant planning permission, in this case the decision which was taken on 17 June. At the meeting the vote to grant planning permission was taken immediately after a public discussion of the application. This public discussion was the only basis upon which the actual reasons for the decision could be deduced. There was no public pronouncement of the reasons immediately after the vote: they first appeared as part of the Minutes of meeting of 17 June.[24]Mr. Langham further submits that the reasons given in the Minutes run to 12 paragraphs (as is the case) and read like the decision letter of a Secretary of State after a public inquiry (which may be more debateable). He suggests that the reasons read as if on 17 June the Council engaged in a decision making process with six stages and 15 separate elements before they voted. In fact, nothing like this staged decision making process occurred at the meeting on 17 June.[25]It is also submitted that in certain respects the treatment of issues by councillors was not reflected in the reasons (although Mr. Langham accepts as he is bound to do that the obligation is to give a summary of reasons only).[26]In consequence, submits Mr. Langham, the stated reasons were not the actual reasons of the Committee and accordingly there has been a failure to give a summary of reasons as required by Article 22.[27]The second ground relied upon can be stated more shortly. It is common ground that the Defendant did not have regard to the possibility of developing a new school in line with what had been option 1 in the feasibility study. The Girls School submit that this was a failure to take into account a material planning consideration and, accordingly, the planning permission should be quashed.[28]I deal with each of these grounds in turn. Ground 1[29]Mr Langham, on behalf of the Girls School, made written and oral submissions in support of ground 1 as summarised by me above. As he accepted during the course of oral argument, however, central to his submissions was the contention that the notice of planning permission should contain a summary of those reasons and only those reasons which had motivated the members of the Development Control Committee to vote in favour of the planning application on 17 June 2008.[30]I have considerable reservations about whether or not this stark proposition is well founded. Article 22 is in the following terms:- “22 (1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and - (a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;” It is to be observed that the obligation imposed upon the local planning authority is to give a summary of its reasons for the grant of planning permission. It is common ground that the grant of planning permission is constituted not by a resolution to grant permission made by a committee of the local planning authority but by the issue of the notice. On a plain reading of the language of Article 22, therefore, it seems to me that the obligation of the local planning authority is to give a summary of the reasons which motivated the issue of the notice which granted planning permission.[31]If that is the correct analysis of the legal obligation imposed upon a local planning authority there can be no doubt that the Defendant complied with it in the instant case. Well in advance of the issue of the notice of planning permission reasons why the notice was to be issued were distributed to members so that they could consider the same and decide, for themselves, whether the draft reasons accorded with the reasons why they wished to grant planning permission. As is clear, none of the members comprising the Development Control Committee dissented from the articulation of the reasons presented to them by the relevant officers.[32]This analysis, if correct, is sufficient to dispose of ground 1. However, in deference to Mr Langham’s arguments I consider ground 1 in more detail.[33]Mr Langham accepts that the Defendant’s decision making process i.e. the decision making process leading to the grant of planning permission was not complete until the notice was issued. That is true, as a matter of law, whether the time which lapses between a resolution to grant planning permission and the issue of the notice is very short (as is commonly the case in straightforward cases) or weeks elapse between these two steps. It must be true on the facts of the instant case since, clearly, the Defendant’s power to grant planning permission depended upon there being no intervention by the Government Office for London or the Mayor of London. Since, in my judgment, the decision making process began with the meeting on 17 June 2008 and ended with the grant of planning permission on 5 August 2008 it seems to me to be beyond argument that the decision maker could formulate a summary of its reasons for the grant of planning permission at any stage prior to the completion of the decision making process. On any view, in this case, that occurred.[34]Even if I am wrong in both views put forward in the preceding paragraphs I am also of the view that Mr Langham has failed to demonstrate that the reasons expressed in the grant of planning permission were not the reasons which motivated the Development Control Committee, collectively, to resolve to grant planning permission. It is to be observed that 16 members of the Development Control Committee were present on 17 June 2008. Not all are recorded as speaking. Those who did speak, no doubt, did so in response to the ebb and flow of the debate which was then occurring. It is wholly wrong, in my judgment, to categorise what a councillor may say in the course of the ebb and flow of a debate such as takes place in advance of a vote upon a planning proposal as being the reason or reasons for his or her decision. The whole point about collective decision making is that the members of the decision making body collectively agree on what is to happen and why it is to happen. What each may say during the course of debate in advance of a decision cannot be regarded as collective even if, which I doubt, it is anything other than a possible guide to the reasons motivating that person.[35]As a matter of process it is obviously possible that planning officers can provide draft reasons for the grant of permission (or for that matter refusal of permission) in advance of a vote being taken. No doubt, in straightforward cases that could be done very simply. It does not seem to me, however, to be impermissible for planning officers to listen to the debate which occurs, take account of the detailed report of the planning officer and then produce reasons for approval by the members which seem to them to reflect the views of the members. If, thereafter, the members adopt those reasons and, do so publicly, I find it very difficult to see how it can be said that those are not the reasons which motivated their vote in favour of the grant of planning permission.[36]I would not regard that process as unlawful. Further I would not conclude that this process leads to (or in the instant case led to) a breach of Article 22 of the Regulations.[37]I appreciate, of course, that detailed written submissions have been made which seek to demonstrate that things were said during the course of this debate which may now seem inconsistent with the summary reasons notified. As I have endeavoured to explain, however, that is not the point. The obligation, on any view of it, is to provide a summary body of reasons which, collectively, the Development Control Committee acknowledges to be the reasons which motivated its decision. In my judgment this is what has happened in this case.[38]In formulating his submissions Mr Langham placed considerable reliance upon a decision of Sullivan J, as he then was, in R (Wall) v Brighton and Hove CityCouncil [2004] EWHC 2582 (Admin).[39]The facts in Wall were very different from those in the instant case. In that case the local planning authority granted planning permission on 18 March 2004 for the demolition of an existing two-storey house and its replacement by eight self-contained flats. The application was debated in committee on 17 March and the vote in favour of the grant of planning permission was 7:4. When it issued the notice of the grant of planning permission on 18 March 2004 the local planning authority failed to include a summary of its reasons for the grant of planning permission within the notice. Further, reasons had not been agreed by those who voted in favour of the grant of permission at any time prior to the issue of the notice. The Claimant sought an order quashing the planning permission on two grounds, one of which was the failure to specify summary reasons for the grant of planning permission within the notice of grant. Permission to apply for judicial was granted on July 21 2004. On 11 August 2004 a senior lawyer employed by the local planning authority wrote to those members of the committee who had voted in favour of the grant of planning permission requesting that they provide a response setting out their individual recollection of their reasons for granting permission. In due course these were provided by the members of the planning committee. The Defendant thereafter indicated that it was prepared to substitute an amended notice which included reasons and submitted that for the Court to quash the initial decision would serve no useful purpose.[40]I have set out the facts in detail since it seems to me to be impossible to conclude that Sullivan J intended that a judgment upon such unusual facts should have the effect of laying down broad principles about the nature and scope of the duty to give summary reasons and the process by which the reasons should be formulated. In my judgment, Sullivan J was concerned only to decide whether or not it was appropriate to grant a quashing order in a case in which it was acknowledged from the outset that the local planning authority had failed in its duty to provide summary reasons at the time it issued the notice which founded the grant of planning permission.[41]That said, Mr Langham submits that I should pay particular regard to paragraphs 52 and onwards of the judgment. It seems to me that the following extracts from those paragraphs encapsulates the reasoning of Sullivan J. “55. The new requirement [to give summary reasons] does not impose an undue burden upon local planning authorities. Officers' reports customarily include recommended reasons for refusal of planning permission or for the imposition of conditions. Members are free to debate those recommendations and agree or disagree with them, adding or striking out reasons for refusal or conditions. When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officers' report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officers' summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission[my emphasis].” 56. A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void .............. If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case……..58. The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers' advice, where the officer has felt unable to make a recommendation, where the officer's report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee's reasons for granting planning permission. In such cases - and I emphasise that these are merely examples - there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address.59. While there can be no objection in principle to a local planning authority amplifying its summary reasons, since by definition they will not be its full reasons for granting planning permission …., it would equally frustrate Parliament's intention if local planning authorities were able to rely post facto on entirely different or wholly new reasons for granting planning permission:…... It is difficult to see why a local planning authority which has failed to include any summary reasons for granting planning permission in its notice of decision should be placed in any better position. It is not suggested that the members did in fact agree their summary reasons at the meeting on 17th March, but due to an administrative oversight those reasons were omitted from the decision notice on 18th March. It would appear that the, then relatively recent, need to provide summary reasons was not appreciated by members and officers, and it was thought that merely listing the relevant policies would suffice. 66. I do not intend to suggest that in an appropriate case a local planning authority cannot remedy a failure to include summary reasons in the decision notice granting permission. ……. 68. If there has been a failure to include summary reasons for granting planning permission in a decision notice, and the omission has occurred because the Committee has failed to agree upon the summary reasons for its decision, and the local planning authority wishes to make good that omission, then the proper course would seem to me to be for the officers to take the matter back to Committee at the earliest possible opportunity so that the Committee can decide, in public session whilst members' recollection is still fresh, what were its summary reasons for granting planning permission. It must be borne in mind that those reasons might well have been informed by the views of those who were against the grant of planning permission, as well as those who voted in favour. Adopting such a procedure would not necessarily persuade the court that a defective notice granting planning permission should not be quashed, but the fact that a local planning authority had adopted such a procedure would be a factor to take into account in the exercise of the court's discretion, since in practical terms the local planning authority would have undertaken the same exercise that it would have to undertake if the decision notice was quashed, although it would not have been free to change its mind and refuse planning permission.”[42]It is also to be observed that a particular theme running through the judgment of Sullivan J is that the duty to provide summary reasons for the grant of permission brings with it the likelihood that a discipline or structure will be imposed upon the decision-making process. I respectfully agree with Sullivan J that this must be so.[43]Despite Mr Langham’s best endeavours, however, I cannot accept that either this theme or any other aspect of the judgment of Sullivan J has a bearing upon the issue in the instant case. As I have said, Sullivan J was concerned with the issue of whether he should grant a quashing order in respect of an admitted breach of Article 22. The learned Judge had no reason to consider and did not consider the point which is raised by Mr Langham in this case.[44]However, it is not without significance that Sullivan J accepted, unhesitatingly, that the obligation upon the local planning authority was to provide reasons within the decision notice and that the decision making process did not end until the notice had been issued.[45]I have reached the conclusion that the decision in Wall does not assist the Girls School and, that being so, I am firm in my view that the first ground relied upon in this case must fail. Ground 2[46]I turn to the second ground. The Defendant’s Chief Planning Officer advised the Development Control Committee, in effect, that the possibility of an alternative development along the lines of option 1 should be ignored. It is clear that the Development Control Committee accepted that advice. The summary reasons begin:
“Members noted on behalf of the Langley Park Girls School it was submitted that there was an alternative site for the new school called Option 1. In the opinion of those representing the Girls’ school there were significant advantages in locating the new buildings there. However the application which is for full planning permission did not contain that option. Members considered it is the acceptability of the application before the Committee that had to be determined. Members did not regard that it would be appropriate to defer the application for a new proposal based on Option 1 to be brought before them as the applicant was entitled to have the acceptability or otherwise of its own proposal assessed.”
[47]Mr Langham submits that on its own admission the Defendant failed to take into account a factor which was clearly material to its decision. It identified the possibility that an alternative scheme might exist which was said to be less damaging in planning terms than the scheme the subject of the application and yet it failed to take that into account at all when deciding whether to grant permission. Accordingly, he submits, the planning permission should be quashed.[48]In R (Mount Cook Land Limited) v Westminster CC [2004] 2P&CR 22 one of the issues considered by the Court of Appeal was the materiality to a planning application of the possibility of an alternative preferable proposal. During the course of his judgment Auld LJ expressed himself as follows:- “21. The critical question, which it seems to me is one of mixed law and fact, is, therefore, whether the existence of a possible alternative scheme more beneficial in planning terms than that proposed in a planning application is a ‘material consideration’ for this purpose. The Act [The Town and Country Planning Act1990] gives no help as to what may constitute such a consideration, but the following words of Cooke J in Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, at 77, are usually taken as an all context starting point:
“any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances.”
Clarke and Jonathan Parker LJJ expressly agreed with the judgment of Auld LJ. “any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances.”[49]It seems to me, therefore, that my starting point in this case is to ascertain the relevant circumstances as they relate to this case. The feasibility study undertaken by Frankham identified option 1 as a possible scheme of development. However, as is clear from the Study, Frankham rejected option 1 in favour of a proposal which was to become the blueprint for the planning application considered by the Defendant. The written material provided by the Boys School in support of its planning application made it clear that other options (including option 1) had been considered at the stage of the feasibility study. The same supporting material informed the Defendant that the option which became the basis for the planning application had always been the preferred option and that once that decision had been taken no further consideration was given to any other option.[50]The letter of objection put in by the Girls School contained the references to option 1 in the extracts set out above. It is clear, however, that the Girls School was not promoting option 1 as formulated in the feasibility study, but rather some variant upon it which it was asserted would be consistent or more consistent with planning policy.[51]As the report by the Chief Planning Officer makes clear the development proposed by the planning application was inappropriate given its location within a Metropolitan Open Land. However, option 1 and/or any variation upon it would also be inappropriate development since it, too, was development within a Metropolitan Open Land. Mr Langham concedes this much on behalf of the Girls School.[52]The Girls School made no attempt to promote a detailed proposal. At its highest, in my judgment, the letter of objection promotes a concept or an idea.[53]It seems to me to be clear that a local planning authority is entitled to conclude that a possible alternative scheme can be treated as irrelevant when the planning application under considerations is unobjectionable in planning terms. It matters not that the alternative scheme might be thought to be advantageous in planning terms compared to the application proposal. This proposition emerges clearly from the decision in Mount Cook itself.[54]However, Mr. Langham submits that the position is different if the planning application under consideration is objectionable in planning terms but allegedly justified by a compelling need for the development. In those circumstances, submits Mr Langham, a local planning authority is bound to have regard to any suggested alternative which might be less objectionable in planning terms before making a decision upon the application.[55]In Trust HouseForte Limited v Secretary of State for the Environment[1986] 53P & CR 293the Claimants applied for planning permission to build a luxury hotel at a site 5 miles north-east of Bristol City Centre. The Claimants had been searching for an appropriate site for some years and had investigated four alternative sites suggested by the planning authorities but had rejected them. The site of the proposed development lay in the green belt and included high grade agricultural land. The local planning authority refused the application for planning permission and that refusal was upheld by the Secretary of State upon a recommendation from an Inspector who identified the central issue as being whether the need for a hotel on the particular site outweighed the presumption against building in the green belt and the loss of high quality agricultural land. The Secretary of State adopted the reasoning of his Inspector to the effect that if there was a severe shortage of hotel accommodation of this sort, as contended by the Claimants, the normal market forces of the supply and demand would operate and the need would be met at an alternative site. The Claimant applied for an order to have the decision of the Secretary of State set aside on the ground that as a matter of law he was not entitled to conclude that the need would be met at some unspecified alternative site and/or there was no evidence from which it could be concluded properly that the need would be met upon an alternative site. Simon Brown J (as he then was) dismissed the claim. During the course of his judgment he set out the following principles which he derived from earlier authorities:- “(1) Land (irrespective of whether it is owned by the applicant for planning permission) may be developed in any way which is acceptable for planning purposes. The fact that other land exists (whether or not in the applicant’s ownership) upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon the application site. (2) Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it. (3) Instances of this type of case are developments, whether of national or regional importance, such as airports……. coal mining, petro-chemical plants, nuclear power stations and gypsy encampments……. Oliver LJ’s judgment in Greater London Council v Secretary of State for the Environment and London Docklands Development Corporation and Cablecross Projects Limited suggests a helpful though expressly not exhaustive approach to the problem of determining whether consideration of the alternative sites is material…….. “comparability is appropriate generally to cases having the following characteristics: first of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development or at least only a very limited number of permissions.” (4) In contrast to the situations envisaged above are cases where development permission is being sought for dwelling houses, officers ….. and superstores …… (5) There may be cases where, even although they contain the characteristics referred above, nevertheless it could properly be regarded as unnecessary to go into questions of comparability. This would be so particularly if the environmental impact was relatively slight and the planning objections were not especially strong:………… (6) Compulsory purchase cases are a fortiori to planning cases: in considering whether to make or confirm a CPO it plainly material to consider the availability of other sites upon which the need could be satisfied, particularly where an available alternative site is owned by the acquiring authority itself ……..” As I have said Simon Brown J dismissed the Claimant’s challenge accepting that it was permissible for the Secretary of State to have regard to the possibility of development upon an alternative site.[56]The general approach taken in Trust House Forte Hotels Limited was followed by Sullivan J (as he then was) in the recent decision in R(Bovale) Limited v Secretary of State for Communities Local Government and another [2008] EWHC 2538(Admin). I need not quote, extensively, from that judgment since Sullivan J emphasized that he was not intending to set down any general principle. Rather the learned judge said in terms that each case will depend upon its own particular facts and in some cases it may not be necessary to consider the possibility of alternative sites (see paragraph 30).[57]I do not read Trust House Forte and Bovale as laying down a proposition to the effect that a local planning authority is bound to have regard to an alternative scheme on the same site as the proposal under consideration or development upon an alternative site if the application proposal is objectionable in planning terms but a need for the development has also been established. Whether or not the alternative needs to be considered will depend upon the particular circumstances which exist in the case under consideration.[58]Mr Steel QC, on behalf the Defendant submits that the relevant legal principles are encapsulated in the following propositions:- i) The duty of the Defendant is to consider the application before it on its merits and to decide whether it is acceptable in planning terms. ii) Alternative sites or schemes are only potentially a material consideration and then only in exceptional circumstances. iii) When considering whether a decision maker has exercised its planning judgment correctly and adopted a lawful approach to alternative sites, the appropriate test to be applied is that of Wednesbury unreasonableness.[59]In general terms his first proposition is uncontroversial. However, that cannot mean that in an appropriate case alternatives are never to be considered. In making the submission that alternative sites should only be considered a material planning consideration in exceptional circumstances Mr Steel QC relies in particular upon the decision of the Court of Appeal in R (Scott) v North Warwickshire Borough Council [2001] EWCA Civ 315. He also relies upon a decision of Harrison J in Kilmartin Properties (CW) Ltd v Tunbridge Wells Borough Council [2003]EWHC 3137 (Admin).[60]In his decision in Bovale Sullivan J casts doubt upon whether the Court of Appeal in Scott was in truth laying down the general principle for which Mr Steel contends.[61]I do not find it necessary to resolve this issue (assuming that it is open to me so to do) since, as I have found, the issue of whether or not an alternative site or scheme is a material planning consideration must be judged very much against the particular facts which exists in the particular case. I do accept, however, that a decision by a local planning authority about whether or not a consideration is material is a matter of planning judgment so that this Court will usually be slow to interfere with a conscious decision either to take account of or ignore a possible alternative site or scheme for the proposed development.[62]In this case I am completely satisfied that the Defendant was entitled to ignore the possibility of an alternative scheme. As I have indicated, the scheme, in reality, was no more than an idea or concept. It was by no means demonstrated or demonstrable on the information available that the idea or concept was any more acceptable in planning terms than the application which the Defendant was considering. Further, in the context of a case such as the present, it was clearly open to the Defendant to place the considerable weight which it did upon the need to provide the new school; the need to act with urgency for both educational and financial reasons and the need to ensure that the disruption to the education of the pupils of the Boys School was kept to a minimum. Even if, therefore, strictly the Defendant should have considered such information as did exist about the alternative scheme it is inevitable that it would have reached the conclusion that the weight to be attached to the alternative was so little that, for practical purposes, it could be ignored.[63]It follows from the above that I take the view that this ground of challenge also fails with the consequence that the claim must be dismissed.[64]As I said at the outset this is a “rolled-up” hearing. The Defendant opposes the grant of permission. Permission is opposed not just upon the merits (with which I have dealt) but also upon the ground that there was undue delay in bringing these proceedings.[65]If I had been of the view that the claim was meritorious I would not have refused permission on the grounds of delay. Since, however, this aspect is academic I do not propose to set out the reasons which lead me to that view.[66]Finally, I should record that the Defendant and the Boys School urge me to the view that even if illegality was made out I should not grant a quashing order in this case. They submit, in my judgment with considerable force, that a quashing order would achieve no real effect since, inevitably, the decision of the Defendant would be the same on any reconsideration. I have considerable sympathy with this submission. This does seem to me to be one of those cases where no real purpose is served by making a quashing order. Again, however, I do not have to decide that definitively since, as I have said, I am firmly of the view that the Girls School has failed to establish any illegality on the part of the Defendant.

Cited in 1 later judgment