Thakeham Village Action Ltd, R (On the Application Of) v Horsham District Council [2014] EWHC 67 (Admin)

[2014] EWHC 67 (Admin)

Case No CO/6530/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29 January 2014

Before

MR JUSTICE LINDBLOM

Between

The Queen (on the application of Thakeham Village Action Limited)Claimant

Horsham District CouncilDefendant

(4) Monaghan Mushrooms LimitedInterested Parties

Mr Robert Fookes (instructed by Fortune Green Legal Practice) for Claimant

Mr Reuben Taylor (instructed by the Council Solicitor of Horsham District Council) for Defendant

Mr Rupert Warren Q.C.(instructed by Pittmans LLP) for First Interested Party

Hearing Hearing dates: 5 and 6 November 2013

Judgment

Introduction

[1]For many years a large mushroom growing enterprise flourished on two large nurseries in Thakeham, a village near Horsham in West Sussex. In 2010 that enterprise was failing. Proposals for the re-development of both nurseries came forward and were eventually permitted in April 2013. One was for the demolition of the existing nursery buildings and the construction of 146 houses; the other was for new buildings in which mushroom production could continue. The claimant in this claim for judicial review, Thakeham Village Action Ltd. (“Thakeham Village Action”), challenges the planning permission granted by the defendant, Horsham District Council (“the Council”) for the housing development. It does not attack the permission granted on the same day for the other proposal.

[2]The two sites are known locally as the Abingworth Nursery and the Chesswood Nursery. Throughout the Council’s handling of the proposals for their re-development, however, they have been referred to respectively as Site A and Site B.

[3]The claim makes two main allegations of unlawfulness. The first relates to the process in which the Council screened the proposal for residential development on Site A under the regime for environmental impact assessment (“EIA”), concluding that an EIA for that development was not required. The second concerns the process by which the Council decided to approve the proposed housing, despite its being in conflict with relevant policy in the development plan and it would enable the redevelopment of the other site for mushroom production.

[4]The applicant for planning permission was the first interested party, Abingworth Developments Ltd. (“Abingworth”). Abingworth and the second interested party, Monaghan Mushrooms Ltd. (“Monaghan Mushrooms”) have taken an active part in the proceedings. The third and fourth interested parties, Beamsync Ltd. (“Beamsync”) and Rydon Homes Ltd. (“Rydon Homes”), have not.

The issues for the court

[5]Permission to apply for judicial review on four of the five pleaded grounds was granted on the papers by Lewis J. on 29 July 2013. Lewis J. refused permission on ground 2, which alleges a failure by the Council to comply with its duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to determine the application for planning permission unless material considerations indicate otherwise. The claimant renewed its application for permission on that ground. And with the agreement of all parties, I dealt with it at the hearing.

[6]There are, therefore, three main issues for the court:(1) whether the Council’s screening opinion for the housing development was lawful and, if not, whether the planning permission granted for that development should therefore be quashed (ground 1 of the claim);

(2) whether the Council failed to comply with the requirements of section 38(6) of the 2004 Act (ground 2); and

(3) whether, in deciding to grant planning permission for the proposed housing, the Council acted unlawfully in relying on that proposal as enabling development for the proposed redevelopment of Site B (grounds 3, 4 and 5).

Background

[7]Thakeham Village Action was incorporated in 2013. Its aims are “the preservation, protection and enhancement of the character of the Parish of Thakeham and its surrounding area”.

[8]Until 2010 both sites were occupied and used for mushroom growing by a company called Sussex Mushrooms Ltd. (“Sussex Mushrooms”). When its business was struggling to survive, Sussex Mushrooms agreed with Abingworth and Beamsync, which owned Site A, that Abingworth would carry out the comprehensive redevelopment of both sites: Site A for housing, once Abingworth had exercised its option to purchase the site, Site B for a new mushroom production facility, in which Sussex Mushrooms would consolidate its operation. The development on Site B was to be partly funded by a financial contribution from the development of Site A, secured by an obligation under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”).

[9]In February 2010 the Council received from Boyer Planning Ltd (“Boyer Planning”), on behalf of Abingworth, two requests for a screening opinion, one for each proposal. The Council issued two screening opinions: for the Site A development in a letter dated 11 March 2010, and for the Site B development in a letter dated 19 March 2010.In both it concluded that an EIA was not required.

[10]On 23 July 2010 Abingworth made two applications for planning permission. On Site A it sought full planning permission for a development described in the application (DC/10/1314) as:

“… the demolition of existing buildings and redevelopment of the Abingworth Nursery site for 146 dwellings, comprising of open market dwellings, 51 dwellings for the 55+ age group, 12 affordable dwellings, 20 key-worker dwellings, village hall building (including shop and doctor’s surgery), Thakeham pre-school facility, community workshops/studio (957.5 sq.m.), sports pitches and changing rooms, cricket pitch and pavilion, children’s play area, access roads, open space and landscaped areas (including footpaths)”

. The application for planning permission on Site B (DC/10/1316) proposed the erection of new compost bunkers, and other buildings and structures for the cultivation of mushrooms.

[11]On 19 April 2011, the Council’s Development Control (South) Committee, following the advice of the Head of Planning and Environmental Services, resolved in principle to approve both proposals. The committee was advised that the residential development proposed for Site A was contrary to the development plan, but should be approved because its financial contribution of £2.7 million to the proposed redevelopment of Site B would make that proposal viable, and because it would bring other benefits to the community.

[12]In August 2011, before the Council had granted planning permission for either proposal, the mushroom operation was acquired by Monaghan Mushrooms. Sussex Mushrooms went into administration. Monaghan Mushrooms did not want to pursue the approved proposal for Site B. The application for that proposal was withdrawn.

[13]On 30 March 2012 Boyer Planning requested a screening opinion for a revised proposal. The Council issued a further screening opinion on 16 April 2012. Once again, it decided that an EIA was not required.

[14]The second application (DC/12/0841) for planning permission for the redevelopment of Site B was submitted by Abingworth on 22 June 2012. It proposed a development described as: “Demolition of existing growing rooms and surrounding ancillary buildings totalling 20,789.50 sq. metres. Removal of compost production on site. Erection of new growing rooms, referred to as farms (20,820 sq. metres) required for the cultivation of mushrooms, a replacement office building (553 sq. metres), staff cafeteria, pack house building ([3,003] sq. metres), ancillary plant structures and provision of open space and landscaped areas (including redirected footpaths). Other works include the refurbishing and extension of existing production and package buildings including alterations to the entrance of the site and provision of two dwellings for site management. …”.

[15]This proposal was accompanied by a document entitled “Capital Project Summary & Budget for Enabling Works”, dated April 2012. The Council obtained from Ernst & Young LLP (“Ernst & Young”) an independent review of that document, dated 31 July 2012.

[16]On 4 September 2012 the Council’s committee considered the new proposal for Site B, together with the proposal for Site A, which was unchanged. The members were told by the officer that Ernst & Young had advised that the proposed redevelopment of Site B, even if carried out by Monaghan Mushrooms, would require a subsidy of £3.75 million. The committee resolved to approve both proposals.

[17]On 16 October 2012 the committee received a further report from the officer, advising it about the sequence of works envisaged on the two sites. It confirmed its resolution to grant planning permission for both developments, subject to an appropriate obligation.

[18]On 19 April 2013 Abingworth and Monaghan Mushrooms as developers, Beamsync and Rydon Homes as landowners and several other parties entered into a section 106 agreement with the Council. Schedule 2 to the section 106 agreement prevents the planning permission for the redevelopment of Site A being implemented until specified works have been carried out on Site B, the sum of £3.75 million for those works paid by Abingworth to Monaghan Mushrooms, and the freehold ownership of Site B transferred.

[19]The two planning permissions were issued on that day. Issue (1): EIA screening – ground 1 of the claim The EIA regime

Issue (1): EIA screening – ground 1 of the claim

[20]The Town and Country Planning (Environmental Impact Assessment) (England) Regulations 2011, which came into effect on 24 August 2011, applied to the screening and determination of the second proposal for Site B. They did not apply to the screening and determination of the proposal for Site A. The relevant regulations for that proposal were in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations (“the 1999 EIA regulations”), which transposed into domestic law the EIA directive (Directive 1997/11/EC, as amended by Directive 2003/35/EC and Directive 2009/31/EC).

[21]Regulation 3(2) of the 1999 EIA regulations prohibits the granting of planning permission for EIA development unless the “environmental information” has first been considered by the decision-maker. “EIA development” is defined in regulation 2(1) as either Schedule 1 development or “Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Regulation 4provides, in effect, that a “screening opinion” adopted by a local planning authority will determine whether or not development is EIA development. Regulation 2(1) defines a screening opinion as “a written statement of the opinion of the relevant planning authority as to whether development is EIA development”.Regulation 4(5)provides that where a local planning authority has to decide whether Schedule 2 development is EIA development it “shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development”. Regulation 5(2) requires that a request for a screening opinion be accompanied by “a plan sufficient to identify the land” and “a brief description of the nature and purpose of the development and of its possible effects on the environment”.

[22]Schedule 2 to the 1999 EIA Regulations refers to several types of development, including, in paragraph 10 b) “urban development projects”.

[23]Schedule 3 to the 1999 EIA Regulations contains the selection criteria for screening Schedule 2 development, namely “1. Characteristics of development”, “2. Location of development” and “3. Characteristics of the potential impact”. It provides:

“Characteristics of development 1. The characteristics of development must be considered having regard, in particular, to – (a) the size of the development; (b) the cumulation with other developments; (c) the use of natural resources ... Location of development 2. The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to – (a) the existing land use; (b) the relative abundance, quality and regenerative capacity of natural resources in the area; (c) the absorption capacity of the natural environment … … (vii) densely populated areas; (viii) landscapes of historical, cultural or archaeological significance. Characteristics of the potential impact 3. The potential significant effects of development must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard to – (a) the extent of the impact (geographical area and size of the affected population); ... (c) the magnitude and complexity of the impact; (d) the probability of the impact; (e) the duration, frequency and reversibility of the impact.” (a) the size of the development; (b) the cumulation with other developments; (c) the use of natural resources ... (a) the existing land use; (b) the relative abundance, quality and regenerative capacity of natural resources in the area; (c) the absorption capacity of the natural environment … … (vii) densely populated areas; (viii) landscapes of historical, cultural or archaeological significance. (a) the extent of the impact (geographical area and size of the affected population); ... (c) the magnitude and complexity of the impact; (d) the probability of the impact; (e) the duration, frequency and reversibility of the impact.”

[24]Regulation 20(2) requires an authority that has adopted a screening opinion to “take steps to secure that a copy of the [screening] opinion … is made available for public inspection at all reasonable hours at the place where the appropriate register (or relevant section of that register) is kept”.

Domestic jurisprudence on screening

[25]In R. (on the application of Loader) v Secretary of State [2013] Env. L.R. 7 Pill L.J., with whom Toulson and Sullivan L.JJ. agreed, said (in paragraph 43 of his judgment) that the test for an authority to apply when screening a proposal is whether the development is “likely to have significant effects on the environment”. Judgment has to be exercised “focusing on the circumstances of the particular case” (ibid.). Only when there has been a “manifest error of assessment” will the Court of Justice of the European Communities intervene (see Commission v United Kingdom [2006] E.C.R. I-3969) (ibid.). Pill L.J. endorsed (in paragraph 44 of his judgment) the proposition in the Government’s advice on EIA in paragraph 34 of Circular 02/99 that EIA developments will be only “a very small proportion of the total number of [Schedule] 2 developments”.

[26]In R. (on the application of Jones) v Mansfield District Council

[2003] EWCA Civ 1408

Dyson L.J. said (in paragraph 17 of his judgment) that the question of whether a development is likely to have significant effects on the environment is “not a question of hard fact to which there can only be one possible correct answer in any given case”. The role of the court should be limited to “review on Wednesbury grounds”. Dyson L.J. made these observations against the background of the relevant provisions of the EIA directive, including its recitals, one of which referred to EIA “supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment”. Carnwath L.J., as he then was, emphasized (in paragraph 58 of his judgment) that “the EIA process is intended to be an aid to efficient and inclusive decision-making in special cases, not an obstacle-race”, and that “it does not detract from the authority’s ordinary duty, in the case of any planning application, to inform itself of all relevant matters, and take them properly into account in deciding the case.” He went on to say (at paragraph 61) that because the word “significant” does not lay down a precise legal test but “requires the exercise of judgment on planning issues and consistency in the exercise of that judgment in different cases”, the function is one for which “the courts are ill-equipped”.

[27]In Loader Pill L.J. said (in paragraph 31) said that there was now “ample authority that the conventional Wednesbury approach applies to the court’s adjudication of issues such as these”. That principle is firmly established (see, for example, paragraph 22 of Beatson L.J.’s judgment in R. (on the application of Evans) v Secretary of State for Communities and Local Government

[2013] EWCA Civ 114

[28]An authority does not have to set out at length in its screening opinion the considerations it has taken into account, but the essence of its reasoning must be plain (see, for example, the judgment of Richards L.J. in R. (on the application of Wye Valley Action Association Ltd) v Herefordshire County Council

[2011] EWCA Civ 20

, at paragraph 47). In R. (on the application of Bateman) v South Cambridgeshire District Council

[2011] EWCA Civ 157

Moore-Bick L.J. said (in paragraph 21 of his judgment) that, in the light of the decision of the European Court of Justice in R. (on the application ofMellor) v Secretary of State for Communities and Local Government [2010] Env. L.R. 18, an authority adopting a screening opinion “must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision”. He accepted (at paragraph 22) that a screening opinion is to be read in the context of the request made for it.

[29]An authority is not bound to require an EIA if there is some uncertainty about the likely effects of the development. In Jones Dyson L.J. said(at paragraph 39) that “the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect”. However, it is “possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken” (ibid.). This would depend on “the circumstances of the individual case” (ibid.). As Pill L.J. said in Loader (at paragraph 40), if an authority “came to the belief during the course of making the decision that the proposed development might have significant effects on the environment, it would be open to [it] to require an environmental statement at that stage (R. (on the application of Mageean) v Secretary of State for Communities and Local Government

[2011] EWCA Civ 863

…, per Sullivan L.J.)” (see also Horton v Secretary of State for Communities and Local Government

[2011] EWHC 3583 (Admin)

and

[2012] EWCA Civ 1210

[30]In Loader the Court of Appeal rejected the submission that a significant effect on the environment is one that has a real prospect of influencing the outcome of the application for planning permission (see paragraph 21 of Pill L.J.’s judgment). Pill L.J. said (at paragraphs 45 and 46): “45 … Establishing that the environmental effect will influence a particular development consent decision may well be a necessary requirement for a decision that development is EIA development but it is not determinative of whether the effects are likely to be significant and “ought to be considered”. 46 The proposed test does not accord with the overall purpose and tenor of the procedure initiated by the Directive. A formal and substantial procedure is contemplated, potentially involving considerable time and resources. It is contemplated for a limited range of [Schedule] 2 projects, those which are likely to have significant effects on the environment. To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept. …”.

[31]In Bateman Moore-Bick L.J. said (at paragraph 20) that it was important to bear in mind “the nature of what is involved in giving a screening opinion”. A screening opinion, he said, “is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others”. What is involved in a screening process is “only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all”. The court should not, therefore, impose too high a burden on planning authorities in what is simply “a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment …”. In Zeb v Birmingham City Council

[2009] EWHC 3597

Admin Beatson J., as he then was, said (in paragraph 25 of his judgment) that “what is required is an initial assessment of an intended proposal”.

Circular 02/99

[32]Paragraphs 33 and 34 of Circular 02/99, under the heading “The need for EIA for Schedule 2 development – General considerations” state: “33. … In the light of [the selection criteria in Schedule 3 to the 1999 EIA regulations], the Secretary of State’s view is that, in general. EIA will be needed for Schedule 2 developments in three main types of case:a. for major developments which are of more than local importance (paragraph 35);

b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and

c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42). 34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with the development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents’ arguments reveals that there are likely to be significant effects on the environment.” a. for major developments which are of more than local importance (paragraph 35); b. for developments which are proposed for particularly environmentally sensitive or vulnerable locations (paragraphs 36-40); and c. for developments with unusually complex and potentially hazardous environmental effects (paragraphs 41-42).

[33]Paragraph 35 of the circular, under the heading “Major development of more than local importance” states:

“In some cases, the scale of a development can be sufficient for it to have wide-ranging environmental effects that would justify EIA. There will be some overlap between the circumstances in which EIA is required because of the scale of the development proposed and those in which the Secretary of State may wish to exercise his power to “call in” an application for his own determination. However, there is no presumption that all called-in applications require EIA, nor that all EIA applications will be called in.”

[34]Paragraph 43 of the circular, under the heading “Indicative criteria and thresholds” says that the question of whether a Schedule 2 development is likely to have significant effects on the environment “must be considered on a case-by-case basis”. Paragraph 44 says that “[the] fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment”.

[35]In its advice on urban development projects within paragraph 10 b) of Schedule 2, Annex A to the circular states:

“A18. In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination … . A19. Development proposed for sites which have not previously been intensively developed are more likely to require EIA if: • the site area of the scheme is more than 5 hectares; or • it would provide a total of more than 10,000 m2 of new commercial floorspace; or • the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings).”

The circular acknowledges, in the opening paragraph of Annex A, that “[the] more environmentally sensitive the location, the lower will be the threshold at which the significant effects will be likely”. • the site area of the scheme is more than 5 hectares; or • it would provide a total of more than 10,000 m2 of new commercial floorspace; or • the development would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more than 1,000 dwellings).”

The screening requests of 26 February 2010

[36]The two screening requests submitted by Boyer Planning on 26 February 2010 were made under regulation 5(1) of the 1999 EIA regulations.

[37]The screening request for the Site A said that a “comprehensive solution” for the two sites was proposed, and that two “associated planning applications” would be submitted.

[38]Under the heading “The Site and Existing Uses” the screening request referred to the area of Site A (“33.78 ha”), its location and its existing use. It said the site was “generally surrounded by agricultural land”. It described the site in this way:

“The main site includes mushroom production buildings of a similar appearance to the Chesswood site and the use is (like Chesswood) about as far removed from an agricultural use as … is possible. It is far closer to a mixed agricultural and industrial use, and therefore does not fall into any use class.”

[39]Under the heading “The Proposed Development” the screening request described the proposal for Site A. The layout was shown in the accompanying “Site Phasing Plan” (drawing AB01 00.012). It explained that the proposal for 146 houses would comprise “open market dwellings, dwellings limited to the 55+ age group, affordable dwellings, key-worker dwellings and some replacement dwellings”. The “market housing” would occupy 4.71 hectares. The housing for people aged over 55 would take up 2.62 hectares, the affordable housing 0.32 hectares, and the housing for key workers 0.52 hectares. Thus “the total proposed development would occupy 8.17 ha of the total available 33.78 ha”. All of the existing buildings and hardstanding on the site would be removed, except for a barn. The intention was to allocate a “proportion of the proceeds” of the development of Site A to Sussex Mushrooms “on the proviso” that it would make a “capital investment” on Site B, which would lead to the consolidation of mushroom production on that site.

[40]The screening request then turned to a series of potential effects of the proposed development of Sitea. A. On “Traffic” it said that the “most significant change in vehicular movement” would be “the reduced trips” between Site A and Site

b. B. It predicted that “up to 120 trips, normally undertaken between the two sites, would cease” if the development went ahead. It added that a “complete traffic survey would accompany the planning application”. On “Sustainability” it said that the consolidation of the two nurseries “would allow for a greater reduction in vehicular movements, therefore restricting movement to [Site B]”. On “Footpaths and amenity” it said that the development of Site A “would contribute to enhancing the local setting …”. An existing footpath would be extended, and recreational facilities would be provided with the development. On “Ecology and Biodiversity” it said that a Phase 1 Habitat Survey had been undertaken and had shown that “no protected species of fauna or flora other than bats” were on the site. Opportunities for “enhancing biodiversity” would be “disclosed in the reports to be submitted with the application”.

[41]The screening request next dealt with “Planning Issues and History”. It referred to Policy CP15 – “Rural Strategy” of the Horsham District Core Strategy adopted in December 2007, and said that both proposals were intended to comply with its criteria for development in the countryside.

[42]Under the heading “The Proposed Planning Application” itsaid that the application for planning permission would be accompanied by a number of documents, including a Design and Access Statement, a Flood Risk Assessment, a Transport Assessment, an Ecological Survey Statement, a Landscape Assessment, a Sustainability Statement and a Community Involvement Statement.

[43]The penultimate section of the screening request was headed “Need for an Environmental Impact Assessment”. It contended that the proposal for Site A did not require an EIA:

“… Under Schedule 2 “urban development projects, …” may require an EIA where the area of the development exceeds 0.5 ha. However an EIA would only be required if the project is likely to have a significant effect on the environment. It is our submission that the proposal would not have a significant effect on the environment. …”

. The screening request then referred to the advice in paragraph A19 of the Annex to Circular 02/99 and went on to say:

“These thresholds should only be lowered if the location is particularly sensitive such as an SSSI or AONB, of which the site is neither. The proposals relate to a site which is significantly below the 1,000 dwelling threshold and the residential element is below 5 ha. In any event, all of the potential environmental effects that have been identified in association with the development (both individually and cumulatively with the [proposal for Site B]) will be, or already have been, the subject of detailed studies and reports (as listed above).”

[44]The “Conclusions” of the screening request stated:

“The proposed development, the subject of this Screening Opinion request, would not have a significant effect on the environment. Furthermore the proposals will be refined in close consultation with the Council and the planning submission accompanied by a detailed series of reports which will comprehensively address the environmental issues, such that an Environmental Statement should not be required.”

[45]The screening request for the Site B development, submitted on the same day, was in a similar format. It described the 30.9 hectare site comprising 30 buildings and hardstanding areas, and the location – “generally surrounded by agricultural land”. It also described the proposed development, which was shown on a plan (drawing AB02 09.004). Again, the relationship between the two proposals was emphasized. The “consolidated development” would involve “removing all of the structures” from Site A and constructing new buildings on Site B to accommodate the activities currently undertaken on Site A. The potential effects on the environment were described in a similar level of detail to the screening request for the Site A proposal. On the relationship of the proposal with the development plan the same contention was made as in the screening request for the development of Site A. The screening request said that the application for planning permission would be supported by various documents, which it listed. On the question of the need for EIA it said that the “use of the site and the proposed replacement of some of the buildings on site are not listed under Schedule 2 and therefore fall outside the scope of the regulations”. But it added that, irrespective of this “… there would be no significant adverse effect on the environment”, and that “all of the potential environmental effects” would be or had already been “the subject of detailed studies and reports”. The “Conclusions” were in similar terms.

The screening opinion for the Site A development dated 11 March 2010

[46]The Council’s screening opinion of 11 March 2010 for the Site A development referred to the screening request in Boyer Planning’s letter of 26 February 2010. It identified the relevant statutory provision, regulation 5 of the 1999 EIA regulations. It said that there would be a separate screening opinion for the Site B proposal, but that “to ensure that no cumulative issues are overlooked, the associated impacts of each of the applications have been considered jointly”.

[47]After its introductory paragraph the screening opinion was divided under four main headings: “Classification”, “Assessment of Likely Effects”, “Further Consideration of Impacts” and “Conclusion”.

[48]Under the heading “Classification” the officer responsible for preparing the screening opinion on behalf of the Council said this:

“After having considered the information provided, I am of the shared opinion that the development falls within Schedule 2 of the EIA Regulations and as such should be considered under Item 10(b) Urban Development Projects. The threshold for determining whether an EIA may be required under this item is whether the development area exceeds 0.5 hectares. The proposed area of works is circa 33.7 hectares which clearly exceeds the 0.5ha threshold; therefore a formal screening opinion is required to determine whether or not the development is likely to have a significant effect on the environment.”

[49]The next part of the screening opinion, under the heading “Assessment of Likely Effects”, referred to the selection criteria in Schedule 3 to the 1999 EIA regulations, and to the Government’s advice on EIA in Circular 02/99. It referred to the selection criteria in Schedule 3 relating to “the general characteristics of the development, the environmental sensitivity of its location and the characteristics of its potential impact”. The screening opinion stated that there were “no landscape designations within the surrounding area”; that the location was “not considered to be environmentally sensitive”; and that “the most relevant” of the Schedule 3 selection criteria in this case were “the size of the development and its potential urbanising effect”.

[50]The screening opinion then referred to the advice in Circular 02/99 that an EIA is more likely to be required for “major developments which are of more than local importance” or for “unusually complex developments”. This was clearly a reference to paragraph 33 of the circular (see paragraph 32 above). In the light of that advice the screening opinion said that in the Council’s opinion “the provision of 146 new dwellings is not wide ranging enough to be considered of more than local importance and although linked with the modernisation of the mushroom production plant on [Site B]”, this redevelopment of Site A was not “unduly complex or likely to have potentially hazardous environmental effects”. The final paragraph in this part of the screening opinion stated:

“On these grounds it is considered that the proposals are unlikely to have a significant effect on the environment and that an EIA is not necessary.”

[51]The screening opinion went on, under the heading “Further Consideration of Impacts”, to consider eight specific matters.

[52]On “Landscape Sensitivity”, the Council accepted that the development involved putting “circa 150 dwellings on a site which currently comprises agricultural land in a rural setting”, and that this would be a “permanent loss”, which meant that there “could be implications for landscape character”. It welcomed Abingworth’s intention to submit a Landscape Assessment, which, it said, should demonstrate “how the proposed development will not detract from the surrounding landscape setting, also considering the cumulative impact of the modernisation of Chesswood Nursery”.

[53]On “Ecology”, the Council noted that the Phase 1 Habitat Survey had found bats on the site. It therefore recommended that a bat survey be undertaken to show “how bats and their roosts will be safeguarded [on the site] once development begins”. The results of the bat survey “should inform any further work and be submitted in support of the planning application”.

[54]On “Archaeology”, the Council acknowledged that the site was “not within a designated area of archaeological importance and there is little evidence to suggest that there are any archaeological remains [on the site] of national importance”. However, it recommended that the County Archaeologist should be consulted “to ascertain whether further investigation should be undertaken”.

[55]On “Flood Risk”, the Council said that the site was “within Flood Zone 1 with only a small water course running through the centre”, and accepted that the submission of a Flood Risk Assessment with the planning application would be sufficient to show “how [Abingworth] will prevent flood risk as a result of the proposed development”.

[56]The paragraph headed “Transport/Highways Infrastructure” stated:

“Although the volume of vehicle movements associated with the proposed development is not considered to be of a scale sufficient enough [sic] to require EIA, the principal impact of the proposed development is that of increased traffic on the local highway network. As such the submission of a Transport Assessment is welcomed, however HDC would also like to see this accompanied by a detailed Travel Plan demonstrating how private car use will minimised [and] more sustainable forms of transport promoted. The Transport Assessment must also demonstrate how the existing infrastructure has sufficient capacity to accommodate the anticipated rise in traffic generated from the proposed growth.”

[57]On “Noise” the screening opinion said this:

“Due to the potentially urbanising nature of the proposed development and the associated transport impacts, [the Council recommends] a Noise survey be undertaken to demonstrate how proposed development will not have an adverse impact on the surrounding residents and local species and wildlife. The results of such a survey should accompany the planning application.”

[58]On “Ground Contamination” the Council referred to the “previously industrialized nature of a major portion of the site”, and the “potential for ground contamination to exist which should be investigated further prior to an application being submitted”.

[59]Finally, the Council said it hoped that the “Sustainability Statement” would demonstrate “the efficient use of natural resources including water and renewable energy”.

[60]The “Conclusion” of the screening opinion said this:

“In conclusion, after giving careful consideration to the size and characteristics of the development, and the advice contained in Circular [02/99], [the Council feels] that the proposals are not considered likely to give rise to significant detrimental environmental effects by virtue of their size, nature or location. As such we are of the opinion that an Environmental Impact Assessment is not necessary and any non-significantenvironmental impacts associated with the provision of the new homes could be dealt with through the normal planning application process. Notwithstanding this, it is expected that the following documentation be submitted in support of any planning application[:] …”

. The list of the documents required with the application for planning permission included those referred to in the previous part of the screening opinion.

The screening opinion for the Site B development dated 19 March 2010

[61]The screening opinion for the Site B development showed a similar approach and took a similar form to that for the Site A proposal. It acknowledged that the Site B development would be “delivered in conjunction” with the development of 146 dwellings on Site A, and said that “to ensure that no cumulative issues are overlooked”, the “associated impacts” of the two developments had been “considered jointly”. It said that the proposal for Site B was “best considered” under paragraph 7(b) of Schedule 2 as a development for the “Packaging of vegetable products”; that the relevant threshold was an operational development area of more than 10 hectares; that since the “overall footprint of the operational area of the mushroom site, including the newly constructed buildings will only cover circa 3.47 ha, the site is not considered of a sufficient scale to have wide ranging environmental effects which would warrant a full EIA”. It added that “the proposed alterations to the site are likely to have a beneficial effect on the existing environmental issues, through the implementation of odour control measures and the reduced number of vehicle trips between the two sites.”Like the screening opinion for the Site A development it set out a “Further Consideration of Impacts” under several headings. Its “Conclusion” was in the similar terms as that in the screening opinion for the Site A development. It said that the proposals were “not likely to give rise to significant detrimental environmental effects by virtue of [its] size, nature or location”. An EIA was therefore not necessary.

The memorandum of the Council’s Spatial Planning Manager, Strategic Planning, dated 8 April 2011

[62]Before the proposals were taken to the meeting of the Council’s committee on 19 April 2011 the Council’s Spatial Planning Manager, Strategic Planning was consulted on them. He prepared a memorandum, dated 8 April 2011. In that memorandum he considered, among other things, the “Planning Policy Context”. He referred to several policies of the adopted core strategy, including Policy CP5, and to the supplementary planning document “Facilitating Appropriate Development”. He said that, under Policy CP5, “Thakeham (The Street & High Bar Lane)” was one of the “Category 2 settlements”. These are “villages with a more limited level of services which should accommodate only small-scale development or minor extensions that address specific local needs”.

[63]The Spatial Planning Manager considered the “Scale of Development”. He said that “it would not normally be expected that development in such a location (adjoining a Category 2 settlement) would extend to 146 new dwellings or expand the existing community by the extent involved”. He then said this:

“However, … the physical context for the sites with their current use and scale of buildings is itself a material consideration and it is important in the context of the proposals as a whole not to be too focussed on the actual number of houses involved; it is rather a question of the amount of development necessary to make the overall scheme viable … and the environmental enhancement which will result from the removal of existing large scale/poor quality buildings and associated hardstanding areas, which in practice detract from the rural setting far more than appropriate residential development will do. The residential development off High Bar Lane in recent decades has itself been assimilated into the community and there is no reason why the 146 new homes proposed cannot equally complement, rather than threaten, the structure and rural setting of the village, provided the quality of development is appropriate, which is capable of being the case … . On this basis, the scale of residential development involved can be considered acceptable and need not be an overriding reason for rejection of the proposals. … There is no inherent reason in planning policy terms to oppose either the scale or location of the new buildings proposed, provided they meet with the necessary environmental standards and requirements from the Environmental Health Officers’ point of view. Indeed, Policy CP15 supports exactly such an approach. …”

The meeting of the Development Management Committee (South) on 19 April 2011

[64]When the two proposals came before the committee on 19 April 2011 the Council’s Head of Planning & Environmental Services presented a lengthy report, in which he recommended that both proposals be “delegated for approval”, subject to a suitable section 106 obligation.

[65]The officer told the members (in paragraph 1.6 of his report) that before the applications for planning permission had been submitted, both proposals “were the subject of screening opinions and it was confirmed by the Council that a formal [EIA] would not be required for development at either Site A or Site B”.

[66]The memorandum of the Spatial Planning Manager was incorporated into the report. Other consultation responses were also reported. These included:(1) the Council’s Design & Conservation Advisor’s comments that “[as] this is a predominantly rural location, with a countryside edge and views of the South Downs, this suggests the layout is not appropriate for this location” (paragraph 3.44), and that “in [her] professional opinion, the main aspects of urban design, still do not meet the criteria in [the] Council’s design policies ...” (paragraph 3.58);

(2) the comment of the Council’s Engineering Section that the Council’s “Strategic Flood Risk Assessment … is not referred to in either the [Flood Risk Assessment] or the Design and Access Statement submitted with this application” (paragraph 3.60);

(3) the Council’s Landscape Architect’s comment, concurring with the County Council’s Landscape Architect, that “[at] the moment without some significant revisions [he] would have to record an objection to the scheme on landscape grounds, [albeit] it none of the issues are necessarily irresolvable and in principle there is an opportunity through the development to enhance the landscape of the site” (paragraph 3.62);

(4) the Council’s Public Health & Licensing Officer’s observation that “[given] the … likely impact of the scheme on the Storrington AQMA, Public Health and Licensing would resist a development of this scale on air quality grounds”, but that “if there are significant overriding factors associated with the proposal and the development is permitted, then Public Health and Licensing would strongly recommend [a] condition to help to mitigate the air quality impacts of the development” (paragraph 3.73), and that “it does not appear that an appropriate mitigation strategy is achievable in the time frame set by the applicant” and the suggestion, therefore, that “an offset is incorporated into the [section] 106 agreement” (paragraph 3.75);

(5) Thakeham Village Action’s objection, contending that the proposed development “would increase the size of the existing settlement (the Thakeham High Bar Lane settlement) by 59%”, and was “on so large a scale that it would change the landscape from a rural countryside character into an urban/suburban area” (paragraph 4.20); and

(6) the West Sussex County Council’s conclusion that “in highway safety and capacity terms” the development “would not result in any detriment” but that “significant concerns remained in relation to the unsustainable location of the site in transport terms” (paragraph 4.33).

[67]The officer had these and other consultation responses in mind when he assessed the proposals in section 6 of his report. He advised (at paragraph 6.17):

“… Certainly the local community as a whole does not view the current proposals as being acceptable to the local environment … . However, … the potential for an exceptional approach to be taken to development proposals outside the normal context of the planning policies was recognised in the Core Strategy, in Policy CP8. The policy states that development beyond that provided for in the Site Specific Allocations of Land DPD may “… exceptionally be granted where additional local, social or economic needs arise or where development would result in substantial environmental enhancement compatible with the character of the location.””

[68]The officer considered the “Sustainability” of Site A for housing development (in paragraph 6.29). He acknowledged that Thakeham “can be considered an unsustainable location as it lacks a full range of facilities”. However, “the provision and retention of community facilities as a result of the proposed development could be said to reduce such unsustainability to a certain degree”.

[69]Further work was required to resolve doubts about the possibility of land contamination and the consequences of the development for air quality and nature conservation (paragraphs 6.44 to 6.48, 6.49 to 6.56, and 6.58 to 6.60).

[70]In his “Overall Conclusion” the officer said this (at paragraph 6.64): “The proposals for residential development do … represent a significant departure from the development plan and the developments as a whole would, of course, have a significant impact upon Thakeham and to a lesser extent, Storrington. These effects when balanced against the economic benefits outlined above need not be considered wholly negative. Indeed, the proposals offer a rare opportunity to meet the local needs of both an important rural business and those of residents. To achieve this … requires a development of extremely high quality; whilst initially there were some important matters to be addressed, the issues previously identified in this context have now largely been resolved. In conclusion, therefore, it is considered that the recommendation on both applications, after a number of months of very careful consideration, is that they should be supported in principle, but delegated to resolve satisfactorily the outstanding issues in relation to both contaminated land and nature conservation matters and to complete the necessary legal agreement …” .

[71]As the minutes of its meeting record, the committee accepted the officer’s recommendation, found the proposals “acceptable in principle”, subject to the satisfactory resolution of the “outstanding issues” and the completion of the necessary planning agreement, resolved to delegate the determination of the applications to the officer “in consultation with the local Ward Members and the Chairman of the Committee”, and came to the “preliminary view” that planning permissions, with appropriate conditions, should be granted. The three “”outstanding issues” were:

“ • the provision of detailed site specific information to determine the presence, nature and extent of any contamination at the site and any remediation measures deemed necessary; • the provision of … suitable mitigation measures to offset the impact of the development upon the Storrington Air Quality Management Area; and • the submission of required details and the receipt of satisfactory comments from consultees in respect of nature conservation”. • the provision of detailed site specific information to determine the presence, nature and extent of any contamination at the site and any remediation measures deemed necessary; • the provision of … suitable mitigation measures to offset the impact of the development upon the Storrington Air Quality Management Area; and • the submission of required details and the receipt of satisfactory comments from consultees in respect of nature conservation”

The screening request of 30 March 2012

[72]The screening request for the revised proposal for Site B was made on behalf of Abingworth on 30 March 2012. Like the previous two screening requests, this one emphasized the “comprehensive solution” sought for the two sites. Only the revised proposal for Site B was the subject of this request. The screening request described the site and its existing use, and the revised proposal for it. As in the two previous screening requests, the potential effects of the development were considered, under a series of headings. On “Traffic” the screening request said that the “cumulative effects of the proposals” for the two sites had been assessed in the Transport Assessment prepared in support of both applications, and were found to have “a negligible effect” on the capacity of the local road network. The development now proposed would not have “any demonstrable harm upon the free … flow of traffic or road safety levels on Storrington Road.”Under the heading “Need for Environmental Impact Assessment” the same observations were made as in the previous screening request for development on Site B, and the “Conclusions” too were the same.

The screening opinion of 16 April 2012

[73]The Council’s screening opinion for the revised proposal for Site B took a similar approach to its screening opinion for the previous one. The Council considered that the proposal came within paragraph 7 b) of Schedule 2. Because of the increase in the footprint of development on the site, it was necessary to consider whether the development would be likely to have significant effects on the environment. In deciding this question the Council had taken into account the provisions of Schedule 3. The proposal was “for the redevelopment of a site currently used for the production of mushrooms”. There were “no landscape or ecological designations on the site”. The “key environmental problems” that could arise were “odour, or reduced air quality arising from altered traffic flows, particularly in the Storrington area”. But the screening request had indicated that “odour would be reduced, and traffic flows lowered from the current baseline”.The screening opinion therefore concluded that “… the potential impacts associated with the proposed development are not so significant that they need to be dealt with outside … the normal planning application process” and that “… a formal [EIA] is not necessary”. The Council “[reserved] the right to re-visit this decision in the light of further information relating to the environmental impacts becoming available”. It added that “[relevant] environmental information will also need to be submitted as part of the normal planning application process”.

[74]The schedule attached to the screening opinion set out the Council’s assessment for each of the applicable selection thresholds and criteria in Schedule 3 to the 1999 EIA regulations. It said that “[any] development of this site must be considered in cumulation with the impacts of any housing development” on Site A. As for the effect on any “densely populated areas”, it said that the “existing population of Thakeham (1,086 in 2001) would be affected by the proposed development, as would any new residents” on Site A, but that the “impacts would be similar to those currently on the site (and may improve with reduced odour)”. It said that there “may be a risk from increased traffic in Thakeham Conservation Area, depending on the route of vehicles accessing the site (particularly if there is cumulation with [the proposed development on Site A])”, but that Abingworth expected the development to “result in lower levels of traffic accessing the site”. On “the extent of the impact” the schedule said that although Site B was “relatively large” and “close to an existing population”, the proposal was “to update the current use, rather than a new development on greenfield land”. And on “the magnitude and complexity of the impact” it said the impacts “would therefore be a continuation from the current use rather than new”, and that “[the] risk of many impacts may be lower than existing levels” .

The meeting of the Development Management Committee (South) on 4 September 2012

[75]When the Council’s committee met on 4 September 2012 to consider the Site A proposal again and the new proposal for Site B, it received another long report from the Head of Planning & Environmental Services. The previous committee report was appended. The officer’s recommendation, as in April 2011, was that both proposals be approved.

[76]In paragraph 1.21 of his report the officer referred to the screening process, in which the Council had concluded “that as the potential impacts associated with the proposed development are not so significant that they need to be dealt with outside … the normal planning application process, … a formal [EIA] was not necessary”.

[77]One of the purposes of the officer’s report was to explain to the members what had been done about the issues left outstanding on the last occasion – land contamination, air quality and nature conservation. All of these issues had now been satisfactorily resolved (paragraphs 1.10 to 1.15 and 7.26 to 7.30 of the report).A Contaminated Land Assessment had been submitted in July 2012. The further information required in the light of that assessment could be made the subject of appropriate conditions (paragraph 7.27). Abingworth had agreed to make a financial contribution for the mitigation of the additional impact of traffic from the development on the Air Quality Management Area in Storrington (paragraphs 7.28 and 7.29). This contribution, which in the endwas £75,000, was later secured in the section 106 agreement. Information had now been provided to satisfy the concerns of the Environment Agency, Natural England and the County Ecologist on nature conservation, including a further bat survey for Site B. Neither Natural England nor the County Ecologist had raised any objections (paragraph 7.30).

[78]The proposals were considered in the light of government policy in the National Planning Policy Framework (“the NPPF”), which had been published in March 2012.

[79]In section 3 of the committee report the views of the Council’s Strategic Planning Officer were set out. In the light of policy in the NPPF relating to economic growth, he had said that the “continued operation of an important rural enterprise is an appropriate justification” for the proposals (paragraph 3.24), and that the development “would continue to result in substantial environmental enhancement by virtue of the redevelopment of the extensive and unsightly [Site] A as well as improvements to [Site] B” (ibid.). He had also acknowledged the “scale of [the proposed] residential development in a relatively unsustainable location” (paragraph 3.28). But he had concluded that “the adverse impacts of this scale of residential development in this location are not so great as to demonstrably outweigh the benefits of the overall scheme in economic, social and environmental terms” (paragraph 3.32).

[80]The Head of Planning & Environmental Services set out his own views and advice on the planning merits of the proposals in section 7 of his report. He said (in paragraph 7.6) that “[without] development it is highly unlikely that a solution would be found for the current dereliction of much of [Site A] and the further dereliction that would follow the end of mushroom production on both sites.” He considered the relationship between the two proposals and the role of the proposal for Site A in enabling the investment in and redevelopment of Site B. He took into account the benefits of the Site A development in helping to meet the five-year supply of housing land in Horsham District, in the facilities it would produce for Thakeham, and “in tidying up the southern part of the site where there are many derelict buildings and growing tunnels …”. And in his “Overall Conclusions” he said this (at paragraph 7.52):

“As previously, it is accepted that the developments as a whole will have a significant impact on Thakeham and to a lesser extent Storrington, but they will also resolve a number of longstanding, current and potential future issues. The effects of the developments particularly when balanced against the clear economic benefits outlined above need not, therefore, be considered wholly negative. Indeed, it is considered that the proposals can be viewed as offering a rare opportunity to meet economic development and environmental enhancement objectives, which will be of long term benefit to the local and wider community. …”

He therefore recommended approval of both applications “so as to ensure the future of the mushroom growing operation in Thakeham and the local employment opportunities it creates.”

[81]The committee accepted the officer’s advice and recommendation. Once again, its “preliminary view” was that planning permission should be granted for both proposals. The minutes of the meeting record the discussion of the proposed development. They state that “[with] regard to the outstanding issues in respect of [the proposal for Site A], information had now been submitted regarding contamination; mitigation of the additional impacts of the development upon the Air Quality Management Area in Storrington; and nature conservation”. They also refer to the EIA screening process:

“A Screening Opinion had also been submitted and it was considered that, as the potential impacts associated with the proposed development were not so significant that they needed to be dealt with outside the normal planning application process, a formal [EIA] was not required.”

The last two paragraphs of the minutes before the resolution were in similar terms to the officer’s advice in paragraph 7.52 of his report.

The meeting of the Council’s Development Management Committee (South) on 16 October 2012

[82]The committee met again on 16 October 2012 to consider a short report from the Head of Planning & Environmental Services on “the sequence of development across the two sites” (paragraph 6.1). The previous committee reports were appended. In view of the arrangements proposed by Abingworth the officer recommended that both proposals be approved, subject to a legal agreement. The committee accepted that recommendation.The applications did not come back before the committee again before the Council granted planning permission for both proposals on 19 April 2013.

The Council’s planning register

[83]In her first witness statement, dated 20 June 2013, the Council’s Senior Environmental Officer, Ms Catherine Howe, explains (at paragraph 7.0) how the Council complied with the requirement in regulation 20(2) of the 1999 EIA regulations:

“The completed Screening Opinions were placed on the Council’s public Planning Register on their completion (i.e. 11th March 2010 and 16th April 2012) and are available to view by any member of the public at any time. We also provide these opinions electronically on request.”

Submissions

[84]For Thakeham Village Action Mr Robert Fookes submitted:(1) It is important to keep in mind the overarching principle that the EIA directive has a wide scope and a broad purpose (see Aannemersbedrijf P.K. Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] E.C.R. I-0503).

(2) The Council is wrong to say that the scheme as a whole was screened both in March 2010 and in April 2012. The proposal for Site A was screened only once, in March 2010. But in any event the screening opinion of 26 April 2012 for the revised Site B proposal could not have corrected errors in the screening opinion issued more than two years earlier for the Site A proposal.

(3) When deciding that the proposal for Site A was not EIA development the Council erred in failing to take into account the scale of the proposed residential development in this particular location. No facts about the nature, size and location of the development were set out in the screening opinion, apart from the area of the site and the number of new houses proposed. The “lack of public transport and the unsustainable nature of the site for residential development” was not dealt with.

(4) Given the nature, size and location of the housing proposed for Site A, no reasonable planning authority would have taken the view, on the information available in March 2010, that the proposed development of Site A was not likely to have significant effects on the environment.

(5) The Council took its decision not to require an EIA without obtaining enough information for a proper screening assessment. Requiring such information to be produced only later was wrong in principle, because it precluded a valid screening process. If the Council saw no need to assess such information, it would have been “illogical and irrational” to request it. Relying on documents submitted with the application for planning permission was inappropriate, and liable to generate a “paper trail”, such as was deprecated in Berkeley v Secretary of State for the Environment [2001] 2 A.C. 603. Deferring consideration of potentially significant effects on the environment was an error of law.

(6) No reasonable planning authority would have failed to reconsider whether an EIA was required when the scale of the development and the significant impact it would have in this location were acknowledged by the Council’s officers in April 2011, and again in September and October 2012. A development of 146 houses was clearly wrong in this rural location, and contrary to Policy CP5. It would greatly increase the size of the settlement, and it would change the landscape. There were other shortcomings in the proposal, to which the officers referred. As the committee was told, and appears to have accepted, both in April 2011 and in September and October 2012, the development was a “significant departure” from the development plan and would have a “significant impact” on both Thakeham and Storrington.

(7) An EIA was necessary not only because the information provided with the planning application showed how harmful the development would be but also because of the doubts that remained about the effects it would have. The Council should have required an EIA, rather than deferring the determination of the application until the likely effects of the development had been considered further.

(8) The Council was therefore prevented by regulation 3(2) of the 1999 EIA regulations from granting planning permission for the proposed development of Site A.

[85]For the Council Mr Reuben Taylor, and for Abingworth Mr Rupert Warren Q.C. submitted:(1) From the outset the Council approached the screening process knowing that it had to consider the cumulative effects of the redevelopment of these two sites. And it did this twice – first in March 2010 and then again in April 2012, concluding on both occasions that an EIA was not required.

(2) The Council’s screening decision on the Site A development was not in any respect unlawful. It was not beyond the scope of a reasonable screening judgment, informed by the relevant material. The Council was well aware of the nature, size and location of the proposed development. It asked itself the right question: whether the development was likely to have significant effects on the environment. It referred to the selection criteria in Schedule 3 to the 1999 EIA regulations. It had regard to the relevant advice in Circular 02/99. It noted that there were no designations protecting the landscape in this part of its area. It judged that the location was not environmentally sensitive. It focused specifically on “the size of the development and its potential urbanising effect”. And it found that the development of 146 dwellings to replace the existing development on Site A, in combination with the redevelopment of Site B for mushroom production, would not have effects wide-ranging enough to be of more than local importance, was unlikely to have any significant effect on the environment, and therefore did not require an EIA. It also went on to consider the main potential impacts one by one, and found none of them likely to be significant. This is a legally impeccable screening opinion.

(3) The Council had the information it needed on which to base its screening opinion, and was not obliged to ask for more. But it was entitled to indicate, as it did in its screening opinions for both proposals, the further surveys, analysis and other information it would require when considering the applications for planning permission. All of this material had been provided and considered by the time the committee resolved in October 2012 that the proposals should be approved. There was no “paper trail”. The Council’s decision to grant planning permission for both proposals was, of course, based on the fuller information it had received by then. But none of the further material made it necessary for the Council to reconsider its decision that an EIA was not required.

(4) The conflict of the proposal for Site A with relevant policy in the development plan did not compel the Council to require an EIA. The suggestion that it did is clearly inconsistent with the Court of Appeal’s decision in Loader. Assessing the planning merits of a proposal is not the same exercise as screening it under the regime for EIA. The officer’s advice to the committee that the development would have a “significant impact” on Thakeham and Storrington did not invalidate the screening opinion for the Site A.

(5) All requirements of the 1999 EIA regulations were complied with, including the requirement in regulation 20(2) that the screening opinion be published in the Council’s planning register.

Discussion

[86]I cannot accept Mr Fookes’ submissions on this issue. Those made by Mr Taylor and Mr Warren are in my view correct.

[87]The relevant jurisprudence is settled, and not contentious. I have already referred to the relevant principles(see paragraphs 25 to 31above). When those principles are applied to the facts of this case, it is clear that the Council’s screening opinion for the Site A proposal was lawful. The same applies to the two screening opinions for the Site B development.

[88]The essential purpose of the screening process under the EIA regime is to enable an authority to judge whether proposed development requires EIA in addition to the normal process of assessment under the statutory provisions for development control. The screening judgment is usually made at an early stage in the authority’s consideration of the project, before the application for planning permission is submitted and long before it decides whether planning permission should be granted. Often – as in this case – it is a judgment made on the basis of less information than is available to the authority when it decides whether the development should be approved (see, for example, the judgment of Moore-Bick L.J. in Bateman,at paragraph 20).

[89]In a case such as this, where a local planning authority’s screening opinion is criticized in a challenge to its grant of planning permission, one must keep in mind that Parliament has entrusted the screening judgment to the authority. The court’s supervisory jurisdiction does not allow it to substitute its own view for the authority’s on the question of whether EIA was required, but only to review the authority’s decision on Wednesbury principles. There is ample Court of Appeal authority for this (see paragraphs 26 and 27 above).

[90]Both the question of likelihood and the question of significance are matters of judgment, susceptible to differences of view within the range of a judgment that is not unreasonable in the Wednesbury sense (see paragraph 26 above). An authority that has taken account of the relevant matters may be held to have reached a legally unimpeachable screening decision even though the court may think that other authorities might have come to a different view had the task been theirs.

[91]In this case I find it impossible to conclude that the Council’s screening opinion for the proposed redevelopment of Site A breached any relevant principle of law.

[92]This was, from the outset, a scheme of two linked proposals. They were, in effect, a single project of redevelopment for two sites that had for many years been owned and operated as a single commercial concern. That is how they were presented to the Council. And that is how the Council approached them, both in the screening process and when determining the applications for planning permission. Though they were submitted in separate applications the Council clearly treated them as connected, in two ways. First, the redevelopment of Site A for housing was intended to enable the redevelopment of Site B for mushroom production. And secondly, as the Council always recognized, the two developments would have cumulative as well as individual effects.

[93]Thus, before the planning permission challenged in this claim was granted – on 19 April 2013 – the two proposed developments had both been screened, albeit in separate screening opinions, on the basis that together they formed a comprehensive scheme. This seems to me to have been an entirely realistic approach. Indeed, any other approach would have been wrong.

[94]I cannot accept that the Council was unable reasonably to conclude, when it issued its screening opinion for the Site A proposal in March 2010, that there were not likely to be any significant effects on the environment.

[95]One must read the Council’s screening opinion in the light of the letter that requested it. Boyer Planning’s letter of 26 February 2010 requesting the screening opinion for the Site A proposal identified the site of the proposed development, its area (33.78 hectares), its location and its existing use (see paragraph 38 above). I do not think the description of the site and its location was less than was required in a screening request. In my view it would have been sufficient even if the officer responsible for preparing the screening opinion was not already well aware of the site and its surroundings. But I cannot believe that the officer was unfamiliar with these two sites, their use in the commercial production of mushrooms, the buildings and structures on them, and their relationship to each other and to the settlement of Thakeham.

[96]Regulation 5(2) required that the Council be given with the screening request “a plan sufficient to indentify the land” and a “brief description” of the nature and purpose of the development and of its possible effects on the environment. Both were provided (see paragraphs 38 to 45 above). The screening request made it clear that the housing development would replace most of the existing buildings on the site. And it specified the areas of each type of housing proposed. In my view the description it gave of the development was enough for the screening process.

[97]Boyer Planning acknowledged that the proposed development was an “urban development project” within paragraph 10 b) of Schedule 2.

[98]In my view, therefore, there can be no doubt that the Council was able to screen the Site A proposal with a proper understanding of the nature, the size and the location of the development.

[99]The summary of the potential effects of the development, set out under a series of headings in the screening request, was also, in my view, adequate. Boyer Planning offered their views on the likely effects. Some they saw as beneficial, including the reduction in traffic between the two sites, the proposed recreation facilities and a possible gain in biodiversity. In their comments on the relationship of the proposal to Policy CP15 of the core strategy they argued that the local environment would be improved, and the impact of development on the countryside reduced (see paragraph 41 above).

[100]Boyer Planning drew the Council’s attention to the advice in paragraph A19 in the Annex to Circular 02/99, including what is said there about the kind of development that would be “more likely” to require EIA if proposed “on sites which have not previously been intensively developed”, such as development on sites of more than 5 hectares and development that “would have significant urbanising effects in a previously non-urbanised area (e.g. a new development of more that 1,000 dwellings)” (see paragraph 43 above). They also pointed out that the location was not a “particularly environmentally sensitive or vulnerable” one, such as a Site of Special Scientific Interest or an Area of Outstanding Natural Beauty. And they said that the development was “significantly below the 1,000 dwelling threshold”. They were right about all of that. Where they clearly went wrong was in saying that the “residential element is below 5 ha”. Although the number of houses proposed – 146 – was well below 1,000, the area of the “residential element” was not below 5 hectares. The area of the market housing, which was 4.71 hectares, was less than that, but the total area of residential development, including the housing for people aged over 55, the affordable housing and the housing for key workers, was to be more than 8 hectares.

[101]The statement in the screening request that all of the potential environmental effects, both individual and cumulative, “will be, or already have been, the subject of detailed studies and reports …” does not, in my view, imply that an EIA was unnecessary because those studies and reports were going to be prepared. It assured the Council that the effects of the proposed development would in any event be addressed in the application documents. But it did not suggest that significant effects on the environment were likely but could be assessed later in those documents. If that was what Boyer Planning had meant, the “Conclusions” in their screening request would have had to be different. The first sentence of those “Conclusions” stated that the development “would not have a significant effect on the environment”.

[102]Of course, the Council was not bound to accept the views expressed in the screening request when deciding whether an EIA was required. In my view, however, it was given enough information about the development and the potential effects on the environment to be able to exercise its own judgment soundly.

[103]There can be no doubt that the Council undertook the screening process for the Site A proposal with the relevant statutory provisions in mind. The officer who compiled the screening opinion referred, under the heading “Classification”, to the relevant category of development in the 1999 EIA regulations – an urban development project within paragraph 10 b) of Schedule 2. She referred to the relevant threshold, which was 0.5 hectares. She did not repeat or adopt the error Boyer Planning had made about the area of the residential development. She referred to the total area of the site on which the development was proposed, which was 33.7 hectares. But, as she obviously knew, the size of the site did not in itself oblige the Council to call for an EIA.

[104]It cannot be said that in making its screening judgment the Council ignored either the relevant considerations in Schedule 3 or the relevant guidance in Circular 02/99. The officer plainly had those considerations and that guidance in mind.In her assessment of the likely effects of the development on the environment she referred to the three broad selection criteria in Schedule 3, which embraced, as she put it, “the general characteristics of the development, the environmental sensitivity of its location and the characteristics of its potential impact”. She also referred to the Government’s advice in the circular (see paragraph 49 above).

[105]The location in which the development was proposed and its size and nature were all properly considered (see paragraphs 49 to 60 above).

[106]In the section of the screening opinion headed “Assessment of Likely Effects” the Council noted that there were “no landscape designations within the surrounding area”. This was a matter of fact. It said that the location was “not considered to be environmentally sensitive”. This was a matter of both fact and judgment. And it acknowledged that “the most relevant” considerations arising from the selection criteria in this case were “the size of the development and its potential urbanising effect”. This was a matter of judgment. In my view, none of these findings and conclusions is in any sense vulnerable in law.

[107]The same section of the screening opinion referred to the advice in Circular 02/99 – that “an EIA is more likely to be required for ‘major developments which are of more than local importance’ or for ‘unusually complex developments’” – was referred to (see paragraph 50 above). The screening opinion then expressed a clear judgment on the effect of housing development, of the scale proposed, in this particular location. The Council’s “opinion” was said to be that the development of 146 new dwellings was “not wide ranging enough to be considered of more than local importance”, and that the project as a whole, including the proposed mushroom production plant on Site B, was not “unduly complex or likely to have potentially hazardous environmental effects”. This shows that the Council had in mind the advice in paragraphs 33 and 35 of the circular. Following the comment made in the previous paragraph of the screening opinion about the need to consider “the size of the development and its potential urbanising effect”, this was plainly the conclusion the Council had reached about the potential effects of this particular development on this particular site next to areas of housing in the rural settlement of Thakeham. It is unreal to suggest that the Council was looking at the proposal in an abstract way without thinking about the particular effects that the development might have on the local environment and on the living conditions of local residents. And the conclusions to which it came on these matters were not in any way bad in law.

[108]The crucial conclusion in the last paragraph of this section of the screening opinion that “[on] these grounds” the development was “unlikely to have a significant effect on the environment”, and therefore that “an EIA [was] not necessary”, is as clear as one could wish. And in my view it was not an unreasonable conclusion in the circumstances. The idea that only the opposite conclusion could reasonably be reached is, I believe, untenable.

[109]The next section of the screening opinion, which set out the “Further Consideration of Impacts”, did not say that in any of those particular respects the Council thought a significant effect on the environment was or might be likely. It did not say that the Council’s opinion that an EIA was unnecessary was merely provisional or uncertain because it depended on work yet to be done. Nor do I think that this can be inferred. On a fair reading, this part of the screening opinion did two things. First, it added some detail to the conclusion that this was not a case in which an EIA was required. And secondly, it confirmed that although there was no need for an environmental statement to be prepared, the Council wanted a number of matters to be considered in the planning application documents to which Boyer Planning had referred in the screening request. It also identified, in broad terms, the nature and scope of that further work.

[110]None of the paragraphs in this part of the screening opinion suggests that the further work required was necessary before the screening judgment could be made. In some respects it was necessary to show “how”, rather than “whether”, a particular concern would be addressed (see paragraphs 51 to 59 above). But one would have to read into those paragraphs words that are not there to see them as contradicting the basic judgment, which both precedes and follows them, that this was not a development for which EIA was required.

[111]The Council was entitled to conclude that none of the specific impacts to which it referred was likely to be significant. And its requirement for further work to be done at the application stage did not negate its opinion that an EIA was unnecessary. For example, the paragraph dealing with what the Council considered would be the “principal impact of the proposed development”, namely traffic, began by saying that the traffic associated with the development was “not considered to be of a scale sufficient … to require an EIA …”. But it went on to say that the submission of a Transport Assessment and “a detailed Travel Plan” would be welcomed, to show how “sustainable forms of transport” would be promoted. This was not at odds with the Council’s screening judgment. The Council recognized that the decision on the planning application would need to be informed by material that it did not require in the screening process. This was both lawful and normal. It is also clear from this part of the screening opinion that the Council did not ignore what Mr Fookes referred to as the “lack of public transport and the unsustainable nature of the site for residential development”.

[112]In my view the Council’s screening judgment was made on the basis of sufficient information about the likely effects of the development. Such uncertainties as there were at that stage did not make it impossible to conclude that there was no likelihood of any significant effects on the environment. The Council’s screening opinion for the Site A development does not offend the principle that at the screening stage the authority must know enough about the impact of the project “to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment”, as Dyson L.J. put it in paragraph 39 of his judgment in Jones (see paragraph 29 above).

[113]The “Conclusion” of the screening opinion leaves no room for doubt. It shows that the Council did not believe the redevelopment of Site A for housing required an EIA, because the development was “not considered likely to give rise to significant detrimental environmental effects by virtue of their size, nature or location”. Again, therefore, one sees that it was not merely the size and nature of the development that had been considered but also its location. The “Conclusion” referred to possible “non-significant environmental impacts”, which it said could be dealt with in the “normal planning application process”, without the aid of an EIA.But the Council emphasized that the planning application would need to be supported by the appropriate documents, which it listed. The reference to “non-significant environmental effects” demonstrates that the Council was conscious of the distinction between such effects and those that might be significant.

[114]The outcome of the screening process for the Site A proposal was not contrary to Wednesbury principles. Focusing on the relevant criteria in Schedule 3, with the relevant advice in mind and taking account of the nature, size and location of this particular development, the Council asked itself and answered the right question: whether it was likely that there would be significant effects on the environment. And its answer was unequivocally “No”. This was not a conclusion beyond the bounds of reasonable judgment.

[115]No complaint is made about the screening process undertaken for the development on Site B, either in March 2010 or in April 2102. By the time the last of the three screening opinions was prepared the application for the Site A development, with all the accompanying documents, had been with the Council for more than a year, had been before the committee, and had been found acceptable in principle. However, planning permission for that development had not yet been granted. Had it been necessary to do so, therefore, the Council could have revisited its screening opinion of 11 March 2010. But it saw no need to do so. When it screened the new proposal for Site B, including again an assessment of possible cumulative effects, it did not find any reason to change its view that an EIA was not required for the Site A development.

[116]The analysis thus far leads to the conclusion that Mr Fookes’ submissions attacking the screening process for the Site A proposal must be rejected. The Council’s screening opinion does not offend any relevant principle of law. The approach it adopted was right. Its conclusion was not irrational. The reasons for its opinion that an EIA was not required were clear. It did not neglect any consideration relevant to its screening judgment at the time when that judgment had to be made. It did not ignore or misunderstand the nature, the size or the location of the proposed development. It did not lack any of the information it needed for a solid screening assessment. It did not defer any aspect ofthat assessmentto the process in which it determined the application for planning permission. It did not start what Mr Fookes, echoing Lord Hoffmann’s phrase in Berkeley, called a “paper trail” of information that ought to have been gathered and considered at the screening stage. It does not need to rely on the reports submitted with the applications for planning permission to overcome some deficiency in its screening of the Site A proposal. I see no such deficiency.

[117]Did anything happen after the Council had issued its screening opinion on 11 March 2010 to call into question the view it had reached, or to make it necessary for an environmental statement to be prepared before the application for planning permission was determined? I do not believe so. I do not accept that any of the advice given by the Council’s officers when the planning applications came in front of the committee or any information that emerged during the planning decision process required the Council to think again about the need for an EIA for the Site A proposal.

[118]The conflict of that proposal with relevant policy in the development plan, which was accepted by the Council’s officers in their committee reports, did not compel the Council to require an EIA. No support for that idea is to be found either in the case law or in relevant policy and guidance. The submission made by Mr Taylor and Mr Warren that the screening process under the regime for EIA is different from the planning decision process is valid, and important. The difference between the two processes has been acknowledged by the Court of Appeal, for example in paragraph 20 of Moore-Bick L.J.’s judgment in Bateman and in paragraphs 45 and 46 of Pill L.J.’s, with the agreement of Sullivan and Toulson L.JJ. in Loader (see paragraphs 30 and 31 above). It is also implicit in government policy, in paragraphs 34 and 35 of Circular 02/99. A proposal may be in conflict with one provision or another of the development plan, and the conflict may be a significant one. But it does not follow that the development in question must therefore be regarded as likely to have significant effects on the environment.

[119]In his submissions Mr Fookes referred to several passages in the committee reports, all of which I have quoted (see paragraphs 66 to 70 above). He focused in particular on the passage in paragraph 6.64of the report for the committee meeting on 19 April 2011 where the officer said that the Site A development would be a “significant departure” from the development plan and that “the developments as a whole” would have a “significant impact” upon Thakeham and, to a lesser extent, Storrington, and the similar passage in paragraph 7.52of the committee report for the meeting on 4 September 2012 (see paragraph 80 above).

[120]What the officer said in those two passages, and in particular his use of the adjective “significant”, should not be misconstrued. The advice he was giving must be seen in its proper context, which was not the same as the context in which the Council had concluded that neither development was likely to have significant effects on the environment.The context for the comments made by the officer in those two paragraphs in his reports was his assessment of all the factors relevant to the grant or refusal of planning permission, within the statutory framework for a development control decision.

[121]This is not to say that considerations relevant to a screening process cannot also be relevant in the context of a development control decision, and vice versa, as Pill L.J accepted in Loader (at paragraph 45). But the making of the planning decision was not the same exercise as the preliminary process, at the screening stage, of deciding whether the additional assessment entailed in an EIA was going to be required.

[122]In my view none of the passages on which Mr Fookes relied in the committee reports is incompatible with the Council’s screening opinion for the Site A proposal, or should be read in that way.

[123]In this case the relevant provisions of the development plan included Policy CP5 of the core strategy, which provides for a hierarchy of settlements. Thakeham is a Category 2 settlement, where housing development on the scale proposed for Site A is contrary to the policy. In its objection to the proposal Thakeham Village Action was arguing, in effect, that the enlargement of the existing settlement was significant and, in the light of Policy CP5, unacceptable. The officer reported that objection (see paragraph 66(5) above). He accepted – and so, it seems, did the members – that the departure from the development plan and the impact on Thakeham, and also on Storrington, would be significant.

[124]But the concept of a significant impact on those two settlements as a material consideration in the planning decision did not mean that the officer, or the members, had come to the view, or should have done, that the Council’s screening decision was wrong. It does not undermine the Council’s conclusion, in the screening process, when it applied the relevant statutory selection criteria in the light of the relevant government advice, that the proposed residential development on Site A was of no more than local importance and that the potential effects on the environment were unlikely to be significant. Nor did it oblige the Council to reconsider its screening decision before granting planning permission. In short, it does not establish any error of law in the Council’s decision at the screening stage that an EIA for the Site A proposal was not required.

[125]The two passages on which Mr Fookes especially relied are in the concluding paragraphs of the April 2011 and September 2012 reports, where the officer summarized his planning assessment of the two proposals. They do not reflect any suggestion within that assessment that the environmental effects of the Site A development were likely to be significant, or that an EIA was required. Nowhere in the officer’s adviceto the committee for its meetings on 19 April 2011, 4 September 2012 and 16 October 2012 did he suggest that the Council’s screening opinion for the Site A proposal could not now stand because a particular effect, such as noise or additional traffic or odour, might be significant. The officer clearly had that screening opinion in mind, because he referred to it (see paragraphs 65 and 76 above). However, his planning assessment did not lead him to advise, or the committee to conclude, that a different view might now be reached on the question of whether the development was likely to have significant effects on the environment. He did not advise, nor did the committee conclude, that an EIA might now be required because the further work that had been done in the preparation of the planning application documents, or subsequently, had revealed some potential impact not foreseen and considered at the screening stage (see paragraphs 81 and 82 above).

[126]When, on 19 April 2011, the committee resolved in principle to support the proposed development of both sites there were three matters on which further work was still to be done. These were the possibility of contamination on Site A, the mitigation measures to offset any impact on the Storrington Air Quality Management Area, and the effect of the development on nature conservation. When the committee met again in September 2012 to consider the scheme in its revised form, those three matters had been satisfactorily dealt with (see paragraph 77 above).Neither in April 2011 nor in September 2012 did the officers suggest that the further work sought by the Council involved the kind of assessment that ought to have been carried out in the preparation of an environmental statement, rather than in the normal way in the development control process itself, in the light of information provided during that process. The officer’s reports did not tell the members that in any of those three particular respects, or in any other respect, there was likely to be a significant effect on the environment, calling for assessment under the regime for EIA. And I do not accept that any of the information that had been submitted to the Council by the time the committee met in September 2012 indicated that an EIA was required, or that the Council ought then to have reviewed its screening opinion. Thus the Council was not prevented from lawfully granting planning permission for the Site A development by regulation 3(2) of the 1999 EIA regulations.

[127]In my view, therefore, none of Mr Fookes’ submissions on this issue demonstrates any legal error either in the Council’s screening process itself or in the process by which it considered the applications for planning permission.

[128]There are two other things I should mention before leaving this issue.

[129]First, Mr Fookes abandoned his submission that in the screening opinion of 11 March 2010, the Council confined its assessment to “significant detrimental environmental effects” without considering whether there were likely to be significant beneficial effects (see British Telecommunications v Gloucester City Council [2002] 2 P. & C.R. 33). He was right to do so. The Council did not limit its screening assessment to potentially harmful effects on the environment. It concluded that the development was “unlikely to have a significant effect on the environment” – not merely that it was unlikely to have a significant harmful effect. And it said twice that an EIA “is not necessary”.

[130]Secondly, Mr Fookes did not maintain the submission that the Council failed to comply with regulation 20(2) of the 1999 EIA regulations, because it did not post the screening opinion on its on-line planning application file. As Ms Howe says in her first witness statement, the statutory requirement was met. Copies of the screening opinions were put on the Council’s planning register (see paragraph 83 above).

[131]It follows that ground 1 of the claim fails. Issue (2): section 38(6) – ground 2 of the claim Relevant law and policy

Issue (2): section 38(6) – ground 2 of the claim

[132]Section 70(2) of the 1990 Act requires a local planning authority, when dealing with an application for planning permission, to have regard to the provisions of the development plan, so far as material to the application, and any other material consideration.

[133]Section 38(6) of the 2004 Act provides:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

That is the essential principle in the “plan-led” system of development control.

[134]The way in which the plan-led system operates has been considered by the court several times. The basic jurisprudence relating to it is to be found in the decision of the House of Lords in Edinburgh City Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447. Four propositions emerge from that decision. They are not controversial. First, both the relevant provisions of the development plan and other material considerations must be taken into account by the decision-maker (see the speech of Lord Clyde at p.1457F-H). Secondly, the development plan has “priority” in the determination of planning applications (see Lord Clyde’s speech at p.1458B). Thirdly, this “priority” is not to be equated to a “mere mechanical preference”. There remains “a valuable element of flexibility”. If there are considerations indicating the plan should not be followed, a decision contrary to its provisions can properly be made (see Lord Clyde’s speech at p.1458F). And fourthly, section 38(6) leaves to the decision-maker the assessment of the facts and the weighing of the considerations material to the decision (see Lord Clyde’s speech at p.1458G-H and Lord Hope’s at p.1450B-H). It is for the decision-maker to assess the relative weight to be given to all material considerations, including the policies of the development plan. Whether there are considerations of sufficient weight to indicate that the development plan should not be accorded the priority given to it by statute is a question for the decision-maker, not the court (see Lord Clyde's speech at p.1459D-H, and Lord Hope’s at p.1450B-D).

[135]The NPPF stresses the primacy of the development plan. It says in paragraph 12 that it “does not change the statutory status of the development plan as the starting point for decision making”, and that “[proposed] development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise.” In paragraph 14 it highlights the “presumption in favour of sustainable development”, which, it says, “should be seen as a golden thread running through both plan-making and decision-taking”. It makes plain that, for decision-taking, this means “approving development proposals that accord with the development plan without delay …”. The first of the “core planning principles” listed in paragraph 17 is that decision-taking “should be genuinely plan-led”.

The committee’s consideration of the proposals

[136]In the “Conclusion” of his memorandum of 8 April 2011 the Council’s Spatial Planning Manager said it was clear that the proposal for residential development on Site A was “not in accordance with the development plan and that it must therefore be justified by material considerations of sufficient weight to indicate that a determination otherwise [than] in accordance with the development plan is appropriate”; that “the planning applications are capable of being acceptable in principle”; and that “on balance … there is sufficient justification to indicate that a determination of the planning applications otherwise than in accordance with the development plan is likely to be appropriate and that the proposals could be supported as being in the best long-term interests of the local community and the District as a whole”.

[137]In paragraph 2.1 of the report presented by the Council’s Head of Planning & Environmental Services to the Council’s committee when it met on 19 April 2011 he reminded the members of the statutory context in which they were making their decision. He said this:

“The Council has a duty to determine the applications in accordance with the development plan unless material considerations indication otherwise (section 38(6) of the Planning and Compulsory Purchase 2004). The development plan currently comprises the South East Plan and the Local Development Framework Development Plan Documents.”

[138]The officer drew the committee’s attention to the relevant provisions of the South East Plan (in paragraphs 2.2 to 2.5 of his report), and of the core strategy (paragraphs 2.6 and 2.7). Throughout the report he referred to the policies of the development plan bearing on each of the matters he considered. As I have said, he quoted the Spatial Planning Manager’s memorandum in full. In his own assessment of the planning merits of the proposals, in section 6 of the report, he began by noting the “clear distinction between the two planning applications with regard to their compliance with the development plan, if they are considered on an individual basis” (paragraph 6.1). He referred to the conflict of the proposal for Site A proposal with Policy CP5 of the core strategy (ibid.). But he urged the members to look at the two proposals together (ibid.).

[139]In paragraph 6.13 of his report the officer said this:

“It must be expressly recognised that the proposed residential development is not in accordance with the development plan and as such, if the two planning applications are to be considered jointly as is indicated, any positive determination needs to be justified by material considerations of sufficient weight to indicate such a determination other than in accordance with the development plan is appropriate. As indicated in the Spatial Planning Manager’s comments set out above, there are a number of factors that need to be considered and weighed in the balance to establish whether or not such a justification exists in this case. The key considerations are as follows …”

. He then identified and assessed the “key considerations” under five main headings: “Economic Development”, “Enabling Development”, “Viability of Residential Development”, “Sustainability”, and “Assessment of Material Considerations”, including “Design and Layout …”, “Affordable Housing”, “Contamination”, “Air Quality”, “Odour Emissions”, “Nature Conservation”, “Foul Drainage”, and “Highways” (paragraphs 6.14 to 6.62). I have referred already to some parts of this assessment, and the officer’s “Overall Conclusion” (see paragraphs 66 to 70 above). In paragraph 6.33, in his “Assessment of Material Considerations” the officer said this: “As a result of the above assessment, therefore, it is considered that, notwithstanding that the residential development planning application … is not in accordance with the development plan, there are in considering the applications jointly relevant material considerations of sufficient weight to justify a determination otherwise than in accordance with the development plan. …”.

[140]As the minutes of the meeting show, the officer’s assessment was accepted by the members.

[141]When the committee met again in September 2012, the officer gave similar advice on the proposals as they then were. As I have said, the report that had been before the members in April 2011 was appended to the new one. Once again, the officer reminded members of the Council’s duty under section 38(6) (in paragraph 2.1 of his report). His assessment of the material considerations now took account of the Government’s policy in the NPPF, including the presumption in favour of sustainable development (in paragraph 2.6 of his report). He also referred to the emerging policy in “the consultation document on the amount of housing required in the District (February 2012) which is a response to the Localism Act and the early stages of the Core Strategy Review” (paragraph 2.17).

[142]The officer reported the views of the Council’s Strategic Planning Officer: that the proposal for Site A was still “contrary to the provisions of the development plan” (paragraphs 3.14); that it was “possible to argue” that it involved a “significant departure” from the plan “and that there are not sufficient material circumstances to override such conflict” (paragraph 3.28); that “[it] remains clear that the residential development planning application … in isolation is not in accordance with the development plan and it must therefore be justified by material considerations of sufficient weight to indicate that a determination otherwise than in accordance with the development plan is appropriate” (paragraph 3.34); that the new proposal for Site B was “in principle in accordance with the development plan” (ibid.); that the two proposals needed to be considered together “because of the linkages …” (ibid.); that “on balance, … there continues to be sufficient justification to indicate that a determination of the planning applications otherwise than in accordance with the development plan is likely to be appropriate …” (paragraph 3.36); and that “a fresh view … can now be taken of the merits of the proposals and the compliance with the objectives and principles of the Core Strategy as a whole and the NPPF, so that there is a clear basis for a positive way forward which will provide the opportunity for enhancement and long term benefits, and avoid the possibility of far less appropriate form of re-use or development on the sites in the future” (paragraph 3.37).

[143]The officer’s assessment in section 7 of this report was similar to that in section 6 of the April 2011 report. I have already quoted the final paragraph of it – paragraph 7.52 (see paragraph 80 above). The officer again distinguished between the two proposals “with regard to their compliance with the development plan, if they were to be considered on an individual basis” (paragraph 7.14). And he went on to say this (in paragraph 7.31): “As a result of the above renewed assessment, examining and reviewing the previous conclusions in the light of the current proposals and circumstances, it is considered that, notwithstanding that the residential development planning application … is not in itself in accordance with the development plan, there are in considering the two applications jointly still relevant material considerations of sufficient weight to justify a determination otherwise than in accordance with the development plan. …”.

[144]Once again, it is clear from the minutes that the committee accepted the officer’s assessment. I have referred to the last two paragraphs of the minutes before the resolution (in paragraph 81 above). The preceding discussion included the following passages:

“… Whilst there remained a clear distinction between the two current planning applications with regard to their compliance with the development plan, if they were to be considered on an individual basis, it was neither intended nor appropriate that the planning applications should be dealt with separately. … It was considered that, notwithstanding that the residential development planning application … was not in itself in accordance with the development plan, there were in considering the two applications jointly still relevant material considerations of sufficient weight to justify a determination otherwise than in accordance with the development plan. It was, therefore, considered appropriate to support the applications in principle given • That the resultant investment and improvements at the mushroom growing site would remove the odour problems; retain and create jobs; and provide a long term future for the site; • The environmental enhancement through the removal of existing buildings and the consolidation of the business on to an improved single site; • The provision of new or enhanced community facilities; and • The provision of housing meeting local needs in terms of affordable housing; that there would be local worker housing and dwellings for occupation by over 55s, which was a sector in need of additional housing provision, and the provision of some open market housing (given that, at present, the authority remained in a difficult position in relation to housing land supply).”

[145]As I have said, when the proposals came before the committee on the third and final occasion, on 16 October 2012, the officer appended his two previous reports to the one he had now prepared (see paragraph 82 above). He told the members that the statutory background – a clear reference to section 38(6) – remained the same (paragraph2.1 ), as did the relevant provisions of national and local policy (paragraphs

2.2 and

2.3 of his further report). He did not change the planning assessment he had set out in his report for the September 2012 meeting (paragraph 6.1). In section 8 of his report heset out the reasons for his recommendation that both proposals be approved:

“Application DC/12/0841 (site B): Having regard to the individual circumstances of this proposal, its form and location as a redevelopment of a site already in mushroom production, the potential benefits to the local economy and the environmental advantages of ceasing composting and of landscaping, the proposal is considered to represent an acceptable form of development in accordance with the development plan. Application DC/10/1314 (site A): It is considered that a decision not in accordance with the development plan is justified by material considerations of sufficient weight, namely that the proposals are in the long [term] interests of the community and the District as a whole; by taking a proactive approach it is possible to seek to ensure that a significant local business modernises its operations with the anticipated reduction in odour, together with the protection of existing and future employment opportunities. In this way it is possible to support the local economy as well as to provide a form of residential development that enables these provisions to be made and also meets local requirements in respect of over-55s accommodation, affordable housing and key worker accommodation and ensures the provision of additional and enhanced community facilities.”

Application DC/10/1314 (site A):

[146]Again, as is plain from the minutes, the members accepted the officer’s assessment.

The Council’s decision notices

[147]In the Council’s decision notices of 19 April 2013 the summary reasons for the granting of the permission on Site A permission were in the same terms as had been recommended by the officer and accepted by the committee at its meeting on 16 October 2012. Submissions

[148]Mr Fookes submitted:(1) In determining the proposal for housing development on Site A the Council failed to give priority to the development plan.

(2) The officer’s report for the committee meeting on 4 September 2012 did not give priority to the plan. Though the officer mentioned the conflict between the Site A proposal and the plan, both he and the members seem to have thought that their task was “merely a matter of balance”, taking the two applications together, looking at the development as a whole, and weighing harm against benefit. As the minutes of the meeting show, the committee did not recognize, as it should have done, that the plan had priority in each of the two decisions it had to take.

(3) The officer’s report to the committee for its meeting on 16 October 2012 also failed give priority to the plan. It did not acknowledge that the proposal was contrary to the development plan, or discuss its merits in the light of that conflict. This defect in the assessment was not overcome either by the officer’s recommendation in section 8 of the report or by the Council’s summary reasons for granting planning permission.

(4) The Council’s decision to grant planning permission for the Site A proposal was therefore unlawful. In making that decision it had failed to give the development plan the priority and weight that section 38(6) requires (see the judgment of H.H.J. Mackie Q.C., sitting as a deputy judge of the High Court in South Northamptonshire Council v Secretary off State for Communities and Local Government

[2013] EWHC 11 (Admin)

, at paragraphs 20 and 69).

[149]Mr Taylor and Mr Warren submitted:(1) The Council did not fail to do what section 38(6) of the 2004 Act obliged it to do. It is clear from all three committee reports, from the minutes of all three committee meetings, and from the reasons for granting planning permission stated in the decision notices that the Council was well aware of the priority to be given to the development plan. The provisions of section 38(6) were referred to in both the April 2011 and September 2012 committee reports. Each of the two proposals was properly dealt with, in accordance with the approach required.

(2) The committee was consistently told that the proposal for Site A was in conflict with the development plan. But it was also told that there were material considerations of sufficient weight to justify a decision that was not in accordance with the plan. The officer advised, and the members accepted, that the development would produce a number of benefits, including investment in the redevelopment of Site B to sustain a local business that would otherwise fail. This and the other advantages referred to by the officers were material considerations to which the Council was entitled to give, and did give, considerable weight – enough weight to overcome the priority due to the plan. Discussion

[150]I see no force in Mr Fookes’ submissions on this ground of the claim.

[151]There is, in my view, no basis for the argument that the Council failed to understand, or failed to follow, the approach mandated by section 38(6) of the 2004 Act.

[152]At no stage can the members have misunderstood the task they faced in deciding whether or not planning permission should be granted for each of the two proposals before them. Both the Council’s officers and its committee knew perfectly well what section 38(6) required. All three of the officer’s reports embodied the plan-led approach. Both he and the members had well in mind that each of the applications must be determined in accordance with the development plan unless material considerations indicated otherwise. He specifically referred to section 38(6) and spelled out its requirements in his committee reports both in April 2011 and in September 2012 (see paragraphs 137 and 141 above). He did not have to do this again in his report for the October 2012 meeting. He would not have needed to do so even if he had not appended his two previous reports, which he did. And this final report also included, in section 8, a summary of his advice on the relationship of each proposal to the development plan – the Site A proposal in conflict with it, the Site B proposal compliant – and, for the proposed development of Site A, the essential justification for a decision that was not in accordance with the plan (see paragraphs 70, 75 to 81, 82 and 145 above). As the minutes and the summary reasons in the decision notices show, the members accepted that advice.

[153]I cannot see how it can be suggested that the committee failed to give the relevant provisions of the development plan the priority that section 38(6) requires. On all three occasions when the proposals were before the committee it was provided with the officer’s explanation of the relevant policies and the proposals’ relationship to them, including the officer’s advice illuminating such conflict as there was between the proposals and the plan, and in particular the conflict between the proposal for Site A and Policy CP5 of the core strategy. The whole assessment of the planning merits presented by the officers was predicated on the priority due to the plan.

[154]The reports presented to the committee and the minutes of its meetings show two things about the approach adopted by both officers and members: first, that a separate decision was made, as it had to be, on each of the two applications, even though they could not sensibly be divorced from each other in the planning assessment; and secondly, that in the assessment of each proposal the presumption in favour of the development plan was applied. The Council’s approach cannot be faulted.

[155]If the Council was going to approve the proposal for Site A the priority given to the plan by section 38(6) would have to be outweighed by material considerations powerful enough to do so. The officer knew this. And so did the members. Appropriate weight had to be given both to the relevant provisions of the plan and to the other material considerations. This was not, however, a simple balance between benefit and harm, between all the considerations weighing in favour of the proposal and all those weighing against. To give appropriate weight to the relevant provisions of the plan the Council had to heed the statutory presumption that a decision consistent with those provisions would be made. Rebutting that presumption was not impossible. But it would require, as Lord Clyde said in Edinburgh City Council (at p.1459F-H), considerations “of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”.

[156]I reject the submission that the officer and the members saw their remit as “merely a matter of balance”, in which the priority of the development plan was given inadequate weight, or no weight at all. It is, in my view, absolutely clear from the committee reports, from the minutes, and also from the Council’s summary reasons in its decision notices, that it grasped the priority to be accorded to the plan. And, no less clearly, the decisions it made were faithful to that priority.

[157]The reasons given for the grant of planning permission for the Site A development begin by acknowledging that the decision was not in accordance with the development plan, but go on to explain why, in the Council’s view, such a decision was “justified by material considerations of sufficient weight”, which it then described in summary form. By contrast, the reasons given for granting permission for the development on Site B make plain that, because of the “individual circumstances” of that proposed development and its benefits and advantages, it was considered to be acceptable and “in accordance with the development plan”.

[158]The members knew that the plan had priority. But they were entitled to conclude, when determining the proposal for Site A, that other material considerations were strong enough to justify a decision that was not in accordance with the plan. Mr Fookes could not submit that the court should upset the Council’s judgment on the weight those other considerations should have. He could not submit that the Council lapsed into perversity when making that judgment. He did submit that the considerations relating to enabling development, which plainly featured in the Council’s decision to grant planning permission for the Site A proposal, were not material considerations at all. But that is a different point. It arises under the next issue I have to consider. The question here is whether the Council failed to follow the approach required by section 38(6). In my view it is quite impossible to conclude that the Council erred in that way. This case comes nowhere near the circumstances in which such a submission will succeed – a case where, as the deputy judge put it in South Northamptonshire Council (at paragraph 69), one can “detect no identification of the priority to be given to the plan”.

[159]Lewis J. found this ground of the claim unarguable. I agree with him. Issue (3): enabling development – grounds 3, 4 and 5 of the claim Relevant law and policy

Issue (3): enabling development – grounds 3, 4 and 5 of the claim

[160]Section 106 of the 1990 Act provides: “(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section … as “a planning obligation”) … –(a) restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically. …”. (a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; or (d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically.

[161]Paragraph 204 of the NPPF says that planning obligations should only be sought where they meet all of three tests: first, that they are “necessary to make the development acceptable in planning terms”, secondly, that they are “directly related to the development”, and thirdly, that they are “fairly and reasonably related in scale and kind to the development”.

[162]For decisions made on or after 6 April 2010 that result in planning permission being granted, regulation 122(2) of the Community Infrastructure Levy Regulations 2010 provides:

“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is – (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.” (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.”

[163]Any consideration relating to the use and development of land is capable of being a material consideration (see the judgment of Cooke J. in Stringer v Minister of Housing and Local Government [1971] 1 All E.R. 65, at p.77).

[164]In several cases the courts have held that the economic benefit in a development that has been funded by another proposal was a material consideration when the decision on the latter was made (see, for example, London Borough of Islington Council v Secretary of State for Communities and Local Government

[2012] EWHC 1716 (Admin)

[165]It is axiomatic that planning permission may not be bought or sold (see the judgment of Lloyd L.J. in Bradford City Metropolitan Council v Secretary of State for the Environment [1986] 1 E.G.L.R. 199, at p.202G). However, a financial contribution may be a material consideration if there is a sufficient connection between the development proposed and the purpose of the contribution (see the decision of the Supreme Court in R. (on the application of Sainsbury’s Supermarkets Ltd.) v Wolverhampton City Council [2011] 1 A.C. 437). Such a contribution may justify the granting of planning permission for a proposal that is otherwise objectionable.

[166]In R. v Westminster City Council, ex parte Monahan [1989] J.P.L. 107 the Court of Appeal held that, provided the decision on a planning application was based on planning grounds and not on some ulterior motive, and was not irrational, financial considerations fairly and reasonably related to the development were capable of being material considerations in that decision. In that case the local planning authority was held to have been entitled to grant planning permission for an office development contrary to the development plan because improvements to the Royal Opera House in Covent Garden would not be financially viable if permission for the offices were not granted and the financial contribution promised by the development were foregone. The court found, on the facts, a relevant and sufficient connection between the two developments.

[167]Kerr L.J., said (at p.111): “Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise. A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could, or would in practice, otherwise not be carried out for financial reasons. Another, no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, i.e., related in the sense that they can and should properly be considered in combination, where the realisation of the main objective may depend on the financial implications or consequences of others. However, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation.” (see also the judgment of Nicholls L.J. at p.121, and the judgment of Staughton L.J. at p.122).

[168]In Sainsbury’s Supermarkets, it was held that the relationship between a superstore proposed by Tesco on the outskirts of Wolverhampton and the site in the city centre where it was offering to provide regenerative benefits was not close enough for the benefits to be taken into account as a justification for the compulsory purchase order. Lord Collins of Mapesbury said (in paragraph 58 of his judgment) that “[the] ratio of the decision in … Monahan is that where there are composite or related developments (related in the sense that they can and should properly be considered in combination), the local authority may balance the desirable financial consequences for one part of the scheme against the undesirable aspects of another part”. He cited the observation made by Lord Keith of Kinkell in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.770, that “[an] offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, would plainly not be a material consideration and could be regarded only as an attempt to buy planning permission”. He went on to say this (at paragraph 70): “What can be derived from the decisions in the planning context, and in particular the Tesco case, can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision-maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. These principles provide the answer to the questions raised in Ex P Monahan … about the development in Victoria or the swimming pool on the other side of the city. They do not, as Kerr LJ thought, raise questions of fact and degree. There must be a real connection between the benefits and the development.” (see also the judgment of Lord Mance, at paragraph 98, and the judgment of Lord Phillips of Worth Matravers, at paragraph 137).

[169]In Derwent Holdings Ltd. v Trafford Borough Council and others

[2011] EWCA Civ 832

the Court of Appeal applied those principles to a scheme, in a single planning application for a superstore and improvements to the Old Trafford cricket ground (see, in particular, paragraphs 18 and 19 in the judgment of Carnwath L.J., as he then was, with which Tomlinson and Sullivan L.JJ. agreed). When considering submissions that had been made by counsel alleging an “inherent inconsistency” in the advice a planning officer had given in that case, Carnwath L.J. said (at paragraph 15 of his judgment) that the committee “would have been aware that the proposal was being put forward as not merely acceptable, but as carrying with it significant regeneration benefits, including the improvement of the cricket ground”. He went on to say (ibid.) that there was “nothing objectionable in principle in a council and a developer entering into an agreement to secure objectives which are regarded as desirable for the area, whether or not they are necessary to strengthen the planning case for a particular development.” In that case, as in Monahan, there was a “direct relationship” between the two elements of the proposals. They were “in close proximity and physically linked”, and had been “reasonably included in a single application”. Even if, as counsel had argued, some of the members thought they could take account of the overall benefits of the two elements, it was “not clear … why that would have been legally objectionable” (paragraph 19 of Carnwath L.J.’s judgment).

The committee meeting of 19 April 2011

[170]In the officer’s report for the meeting of the committee on 19 April 2011 the members were told that the two applications had been put forward as “a comprehensive solution” for the two sites, “through the submission of two associated planning applications for Site A and Site B respectively” (paragraph 1.2 of the report); that the two applications involved the consolidation of the existing use on Site A with the use on Site B “to provide one modernised production plant on [Site B] …” (paragraph 1.3); and that “an ‘enabling’ planning application is also made for a residential development on [Site A] to replace the existing Sussex Mushroom Limited production facilities currently sited there and therefore providing the financial injection needed for the upgrading of the buildings for [Site B]” (ibid.).

[171]The memorandum prepared by the Council’s Spatial Planning Manager discussed the “Viability Considerations”. He referred to the independent assessment of Abingworth’s Management Plan and Viability Study by a firm of accountants, Saffery Champness (see paragraphs 3.13 to 3.17 of the officer’s report to committee). In the light of the conclusions reached by Saffery Champness the Spatial Planning Manager said that “without any additional funding for the necessary improvements, it is clear that the business will fold due to its inability to meet the requirements for such a business …” (paragraph 3.17). He said there was “clearly an argument that the economic needs which arise in terms of the retention of 473 (currently) jobs and the continued operation of an important rural enterprise is an appropriate justification in the terms of [Policy CP8 of the core strategy]” (paragraph 3.19). In his “Conclusions” he said there were “undoubted risks involved in supporting an ‘enabling development’ which cannot in itself guarantee the long term future of the mushroom growing business, but equally there would be continued and greater uncertainty about the future of the sites if the development package were not to be agreed” (paragraph 3.36). The report prepared by Saffery Champness was provided to the members, and its conclusions were summarized in the committee report (see paragraphs4.1 and

4.2 ).

[172]Thakeham Village Action’s objection that “the provision of financial assistance to a company is not a valid reason for permitting unacceptable planning development” was reported to the committee (in paragraph 4.20 of the officer’s report).

[173]In his planning assessment the officer advised that it was “neither intended nor appropriate that the planning applications should be dealt with in [a] ‘detached’ way …” (paragraph 6.1). In paragraphs 6.19 to 6.27 of his report he assessed the considerations relating to “Enabling Development” in detail. He said there could be “no certainty that a viable business will be guaranteed as a result of the ‘enabling development’” (paragraph 6.20), and that the legal agreement envisaged by Abingworth and the Council “cannot … of course, ultimately, guarantee the future survival of the business” (paragraph 6.23). But he accepted that “without the funding and enabling development the business will fail” (ibid.). He explained to the members the relevant provisions of the Community Infrastructure Levy Regulations 2010, and advised that the proposed section 106 agreement was consistent with the relevant principles (paragraph 6.27).

[174]In his “Overall Conclusions” the officer told the members that “[to] refuse the proposals would certainly result in the demise of the Company, the consequent loss of jobs and a significant impact on the local economy, together with issues relating to the subsequent future of the sites”; and that “there would be the loss of potential future jobs were the company to expand successfully as well as those associated with the construction of the development and the new facilities” (paragraph 6.63).

[175]It is clear from the minutes that the committee accepted the officer’s advice on enabling development. The minutes record that the Council’s Chief Executive “reported that advice had been sought from a Q.C. in response to the legal opinion provided to Thakeham Village Action and that the Q.C.’s advice had informed the report now before the Committee”.

The Capital Project Summary of 30 March 2012

[176]In support of the revised proposal for Site B Abingworth submitted a Capital Project Summary, dated 30 March 2012, in which the investment Monaghan Mushrooms were prepared to make in Site B was described. Under the heading “Overview of capital project” this document said that the site was “strategically important to the Monaghan Mushrooms group” for several reasons, and that “[in] the period to the end of December 2011 Monaghan Mushrooms Ltd have invested a total of £2.7 million to maintain production and employment on the site. …”. The “Funding proposal” was also explained. In 2012 and 2013, the document said, “the total investment on site will amount to £6.3 million with a further investment of £6 million at the Tunnel Tech site to replace the obsolete compost facility”. The proposed funding arrangements were outlined:

“Monaghan Mushrooms anticipates the investment being funded from the group’s existing banking facilities subject to an enabling investment of £3.75 million from Abingworth Developments. The commercial viability of the project is predicated on the funding from Abingworth which in turn is dependent on its securing planning permission for residential development on part of the site. Without the enabling funding the Internal rate of return is 6.7% therefore the project cannot proceed. With enabling funding Internal rate of return reaches 10.8%. This is at the lower end of economic viability for an investment with a significant level of risk but given the strategic value of the site the Group is prepared to proceed at this level.”

Ernst & Young’s report of 31 July 2012

[177]After the revised proposal was submitted for the development of Site B the Council engaged Ernst & Young “to provide an independent review of the reasonableness of assumptions used in the Capital Summary [submitted with the planning] and the investment calculations made within it” (Ernst & Young’s letter of 31 July 2012 to the Council’s Director of Corporate Resources). In their report (in sub-section 1.2) Ernst & Young said it was outside the scope of the review “to consider whether the proposed level of enabling investment at £3.75m is appropriate, realistic or affordable in relation to any proceeds from the development of the site”. In paragraph 3.3.10 of their report they said their work broadly confirmed what had been said by Monaghan Mushrooms. The internal rate of return for the “enabling funds” they had calculated was “very similar to the 10.8% included in the analysis provided to support the Capital Summary”, which Monaghan Mushrooms had said was at the lower end of what it would accept for this type of investment.

The committee meeting of 4 September 2012

[178]When the revised scheme came before the committee on 4 September 2012 the officer told the members that a “comprehensive solution” for the two sites was still being promoted (paragraph 1.25 of the report). The officer referred to the financial appraisal that had been submitted with the new application for Site B, the “Capital Project Summary & Budget for Enabling Works” dated April 2012 (paragraphs 1.27 to 1.31). He included the passage that I have quoted from the “Funding proposal” in the Capital Project Summary (paragraph 1.31).

[179]The officer reported the Strategic Planning Officer’s comments on enabling development, in which he accepted that “without the freehold interest in site B and the enabling payment (now £3.75 million) the proposed investment will not take place and the operation will cease with the consequent redundancy of the sites” (paragraph 3.18). The Strategic Planning Officer referred to the conclusions of Ernst & Young (paragraphs 3.20 and 3.21). He also referred to the District Valuer’s advice that the residential development proposed on Site A was capable of being viable if the enabling payment of £3.75 million was made (paragraph 3.22). He recognized that the circumstances were now “somewhat different … in that, at least theoretically, Monaghan Mushrooms could potentially afford the full investment required for the improvements in the mushroom growing site” (paragraph 3.29). But Monaghan Mushrooms had made it “clear that this scale of investment without the enabling payment is not acceptable to the company because of the poor rate of return involved and, more particularly, without the freehold interest in the site which is a key part to the package, there is no basis whatsoever for making the necessary investment in the site” (ibid.). He concluded that “without the overall scheme and the freehold transfer/enabling payment, the business has no future and the sites will become redundant as a horticultural operation” (ibid.). The enabling payment and freehold transfer would “trigger considerable investment as well as the cessation of the on-site composting within a year” (paragraph 3.35).

[180]The officer reported Thakeham Village Action’s contention that the enabling development was not a material planning consideration and was “almost certainly unlawful”, and that the Council could not approve an otherwise unacceptable housing development to subsidize “a private business” (paragraph 4.31).

[181]In his planning assessment the officer referred to the connection between the two proposals. He advised that the two applications were “legally separate entities and either could be determined without regard to the other” (paragraph 7.2). But he then said this (ibid.):

“… However, it is logical to consider the two together because they are inextricably linked: [the application for Site A] offers the benefit of funding the improvements to mushroom production in [the application for Site B], which would not have been submitted without the possibility of that funding. The two sites also have a functional link because mushroom production occurs across both, with spent compost being disposed of on [Site A].”

[182]The officer referred to the decision of the Court of Appeal in Monahan (paragraph 7.3). He added that “security of local employment and the benefits of investment in the local economy are clearly matters of public interest” (ibid.). He said that there had been “significant changes in the enabling arrangement since April 2011”; that the mushroom business was now “run by a very successful mushroom grower, Monaghan Mushrooms, although production inefficiencies intrinsic to the site result in it continuing to make a loss”; and that “what was true in April 2011 is still true today; that a successful mushroom growing business on [Site B] is only possibly with significant capital investment” (paragraph 7.4).

[183]So the “central question with these applications”, the officer said, was “whether it is appropriate to secure a substantial proportion of that investment from development on the Abingworth site that might otherwise be unacceptable” (ibid.). He then tackled the financial and economic aspects of this question, and the relevant objections (paragraphs 7.5 to 7.25 and 7.31 to 7.42). Referring to the advice the Council had received from leading counsel, he rejected the view of Thakeham Village Action that this was not lawful enabling development (paragraph 7.21). He considered the proposed section 106 obligation (in paragraphs 7.44 to 7.50). He said that the “most significant change” was that the “new mushroom farm” on Site B “would be development in a single phase before commencement of development on the enabling [Site A]” (paragraph 7.46). This, he said, was “a welcome change, given that the acceptability of the development on site A is dependent on it facilitating development on site B” (ibid.).

[184]Again, as the minutes show, the members clearly accepted the officer’s approach and advice on enabling development. They include these two paragraphs:

“Whilst the two applications were legally separate entities and either could be determined without regard to the other, it was deemed logical to consider the two together as they were inextricably linked. Application DC/10/1314 offered the benefit funding the improvements to mushroom production proposed in application DC/12/0841, which would not have been submitted without the possibility of that funding. The two sites also had a functional link because mushroom production occurred across both, with spent compost being disposed of on the Abingworth site. It was noted, however, that there had been significant changes in the enabling arrangements since April 2011. At that time, the aim had been to provide a lifeline to a failing business, whereas now the site was run by a successful mushroom grower, although production inefficiencies intrinsic to the site resulted in it continuing to make a loss. In April 2011, the Committee had accepted that development of the Abingworth site was acceptable as a means of securing the continuation of employment and what was true then was still true today: that a successful mushroom growing business on the Chesswood site was only possible with significant capital investment. The central question with the current applications was whether it was appropriate to secure a substantial proportion of that investment from residential development on [Site A], which might otherwise be unacceptable.”

The committee’s answer to that “central question” appears in the final paragraph of the minutes, where it was stated that “on balance” members considered that both proposals should be supported “so as to ensure the future of the mushroom growing operation in Thakeham and the local employment opportunities it created” (see paragraph 80 above).

The committee meeting of 16 October 2012

[185]In his report to the committee for its meeting on 16 October 2012 the officerconsidered “the sequence of development across the two sites” (paragraph6.1 ). He referred to his advice in paragraph 7.46 of the report he had prepared for the previous meeting, in which he had told the members that the planning obligation now in draft would prevent the development on Site A being implemented until the development on Site B had been completed (paragraph

6.2 of the report). He clarified the meaning of “Enabling Development” as discussed in the previous report, which he said was “development that funds something else” as in Monahan (paragraph 6.5). It was still “a critical objective … to ensure that the housing development, which would otherwise be refused permission, does not proceed until the work it would enable on [Site B] has been carried out. …” (paragraph 6.15). This was because “[the] entire principle of enabling is to secure existing jobs,which would be achieved through the enabling works …” (ibid.). In view of the evidence that Monaghan Mushroom’s total investment on Site B would far exceed the £3.75 million provided by the development on Site A, the officer said it would be “more appropriate to tie the commencement of the housing to the completion of the enabling works on [Site B] that it will fund” (paragraph 6.16). He advised the committee that the transfer of the freehold interest in Site B and the payment of the £3.75 million “enabling contribution” following the transfer “are private matters between the parties and cannot be controlled or regulated through the planning process” (paragraph 6.20). There was no power “to enforce commencement of the enabling works” (ibid.). But it had been made clear that Monaghan Mushrooms would not invest and carry out the enabling works until the transfer and the payment of the “enabling contribution” had taken place, and the section 106 agreement would prevent the housing development on Site A being begun until the enabling works on Site B were complete (ibid.).

The section 106 agreement

[186]Recital D to the section 106 agreement of 19 April 2013 states that Monaghan Mushrooms has contracted to buy Site B, and Abingworth is required to sell Site B to it, “forthwith” on completion of Abingworth’s purchase of both sites under an option agreement entered into in May 2010.

[187]Schedule 2 to the agreement, under the heading “Timing of developments”, contains the following covenants by Beamsync, Rydon Homes and Abingworth:

“1. Not to Implement or cause or allow to be Implemented the [planning permission for the Site A development] unless and until: 1.1 [the defined works on Site B] have been completed to the written satisfaction of [the Council] AND 1.2 [Beamsync] and/or [Abingworth] and/or [Rydon Homes] and/or [Monaghan Mushrooms] shall have produced written evidence to the reasonable satisfaction of [the Council]: 1.2.1 from a properly qualified independent quantity surveyor who has certified that all stages of [the defined works on Site B] have been in his opinion satisfactorily completed and 1.2.2 that [Abingworth] has paid to [Monaghan Mushrooms] the sum of £3.75 million … in respect of [the defined works on Site B] and 1.2.3 that the freehold of [Site B] has been transferred to [Monaghan Mushrooms] pursuant to the contract referred to a recital D hereof and such transferee has been registered as the freehold owner at the Land Registry and … 1.2.5 [the Council] has certified in writing that it is satisfied that this paragraph … has been complied with …”

. The defined works on Site B, referred to in the agreement as the “Chesswood Farm Works” are the works to which the officer had referred in his report to the committee for its meeting on 16 October 2012, including the “refurbishment of [the] existing growing rooms” and “the site wide restoration works set out in Schedule 13 headed “Capital Project Summary and Budget for enabling works dated April 2012””. 1.1 [the defined works on Site B] have been completed to the written satisfaction of [the Council] AND 1.2 [Beamsync] and/or [Abingworth] and/or [Rydon Homes] and/or [Monaghan Mushrooms] shall have produced written evidence to the reasonable satisfaction of [the Council]: 1.2.1 from a properly qualified independent quantity surveyor who has certified that all stages of [the defined works on Site B] have been in his opinion satisfactorily completed and 1.2.2 that [Abingworth] has paid to [Monaghan Mushrooms] the sum of £3.75 million … in respect of [the defined works on Site B] and 1.2.3 that the freehold of [Site B] has been transferred to [Monaghan Mushrooms] pursuant to the contract referred to a recital D hereof and such transferee has been registered as the freehold owner at the Land Registry and … 1.2.5 [the Council] has certified in writing that it is satisfied that this paragraph … has been complied with

Submissions

[188]On ground 3 of the claim Mr Fookes submitted:(1) The two applications for planning permission ought to have been considered separately. But they were not. The ostensible link between the two proposals was that both applications were the subject of a single section 106 obligation, in which the developer of Site A committed itself to subsidizing the business of the company that was going to occupy Site B. The proposed residential development on Site A is contrary to the development plan. It was to overcome this objection that the payment of £3.75 million was offered, and the offer was crucial in the Council’s decision to grant planning permission for the Site A development.

(2) The offer of £3.75 million was an attempt to buy planning permission. It was an immaterial consideration. It had nothing to do with the proposal for housing on Site A apart from the fact that it was offered by the developer. But the Council took it into account. The decision to grant planning permission was therefore unlawful.

(3) The requirement in the section 106 agreement that £3.75 million be paid and land transferred to facilitate another development was contrary both to the provisions of section 106 of the 1990 Act and government policy in paragraph 204 of the NPPF, and to regulation 122 of the Community Infrastructure Levy Regulations 2010.

[189]On ground 4 Mr Fookes submitted:(1) The only purpose of Abingworth’s so-called “enabling development” was to subsidize another company, without any control over the conduct of that company in the future or the decisions it might make about jobs. The funding of a “private company” in this way is not a proper planning purpose. This was not the kind of enabling development that the courts have regarded as lawful, such as proposals funding the protection or improvement of heritage assets or sports facilities (see, for example, Monahan and R. (on the application of Hampson) v Wigan Metropolitan Borough Council

[2005] EWHC 1656 (Admin)

). It may be acceptable for one proposal that complies with the development plan to fund another development also consistent with the plan. But to permit development simply because it would fund the development of other land for the benefit of a “private company” is wrong in principle.

(2) In this case the financial contribution created by the housing development on Site A and the transfer of the land were directed to supporting a successful mushroom producing company, which could have funded the development itself but said it would not. The Council’s decision to grant planning permission in these circumstances was improper and unlawful.

[190]On ground 5 Mr Fookes submitted:(1) When the land on Site B is transferred to Monaghan Mushrooms and the works funded by the contribution of £3.75 million have been completed, the housing development can be undertaken on Site A but there is nothing in the agreement to require Monaghan Mushrooms to remain on Site B, or to operate a business there.

(2) The section 106 agreement does not, therefore, guarantee the future of mushroom production on Site B and the jobs involved in it.

[191]On ground 3 Mr Taylor and Mr Warren submitted:(1) There was a clear connection between the two proposals. The two sites are adjacent to each other. They had for a long time been used together as part of a single mushroom growing operation. It was appropriate for the Council to consider the future of both sites together. Indeed, it would have been inappropriate not to take that approach. The two proposals constituted a single, comprehensive scheme for the redevelopment of both sites.

(2) However, as the Council was always aware, it had two applications before it and it had to reach a decision on each, in accordance with the statutory requirements. The financial contribution offered in the proposal for Site A was a material consideration in the determination of that application, to which the Council was entitled to give the weight that it did. It approached this question in the light of its officers’ advice and the independent view of Ernst & Young.

(3) The circumstances here arewithin the principles applied by the Court of Appeal in Monahan and the Supreme Court in Sainsbury’s Supermarkets. This is a case of lawful enabling development.

[192]On ground 4 Mr Taylor and Mr Warren submitted:(1) There is no reason why the concept of enabling development should be confined to schemes that would protect or improve heritage assets or facilities serving or accessible to the public. Financial considerations can be material in any case where a development will produce funds that will be put to use in the public interest – such as securing the future of a company and the jobs it provides – as long as there is a real connection between the two developments.

(2) In deciding to grant planning permission for the development of Site A the Council did not give weight to the provision of funding to a “private company”. It gave weight to the fact that the funds generated by the housing development on one of the two sites previously used for mushroom production would be used to secure benefits in the public interest, namely economic activity and employment on the other site. There was nothing unlawful in this.

[193]On ground 5 Mr Taylor and Mr Warren submitted:(1) The absence of a requirement in the section 106 agreement compelling the owner or occupier of Site B to carry on a mushroom business on that site does not betray any error of law.

(2) The agreement requires work to be undertaken on Site B, at considerable cost, before the housing development on Site A can proceed. Site B would then be owned by a successful mushroom producing company, which would have been obliged to invest in specified improvements to that site. In these circumstances the Council could reasonably conclude that the section 106 agreement was adequate and effective, and should be given due weight in its decision on the Site A application.

Discussion

[194]These three grounds of the claim obviously relate to each other and are best discussed together. I cannot accept Mr Fookes’ argument on any of them. Once again, it seems to me that the submissions made by Mr Taylor and Mr Warren are well founded.

[195]There are the three basic propositions to be considered here.

[196]The first proposition, advanced in ground 3 of the claim, is that it was unlawful for the Council, in determining the proposal for Site A, to take into account the payment of £3.75 million generated by that proposal and tied to the proposed development of Site B by the section 106 agreement. This, it is said, was an immaterial consideration because the only connection between the obligation and the housing development on Site A was that the money was offered by Abingworth as the developer.

[197]Thesecond proposition, in ground 4 of the claim, is that the principles of lawful “enabling development” do not extend to the commitment by an applicant for planning permission on one site to fund a commercial operation in the hands of a “private company” on another. This, it is said, is not a proper planning purpose, or at least is not a proper planning purpose unless the public is to benefit in some way from the enterprise that gets the funding.

[198]The third proposition, in ground 5, is that the section 106 obligation does not, in fact, require Monaghan Mushrooms either to carry out the development proposed on Site B or to operate a mushroom business on that site if the development is carried out, and thus fails to secure the provision of employment on which the Council relied as a significant benefit in approving the development of Site A.

[199]The first and second propositions may not be identical, but they can both be tested with the principles in the jurisprudence on enabling development to which I have referred (see paragraphs 163 to 169 above).

[200]The range of matters that may qualify as material considerations in the making of a planning decision is very broad, an essential principle being that they are considerations both relevant to the use or development of land and relevant to the development being considered. The underlying assumption is that planning decisions must always be made in the public interest, and not merely to further the private interests of a developer or landowner.

[201]Economic benefits of various kinds can be material considerations. A financial contribution whose purpose is to enable other development to proceed may be material, so long as there is a sufficient connection between the proposal and that other development.

[202]The weight to be given to a material consideration is always for the decision-maker to judge, subject to review by the court on Wednesbury grounds. A financial contribution, if it is a material consideration, may therefore prove to be the decisive factor in a planning decision. And this may be so if the purpose of the contribution is to enable some other desirable development to proceed, just as it might be if the aim were to fund the provision of infrastructure or some other planning benefit. Together with other considerations, or even on its own, it may outweigh factors telling against the grant of planning permission, including conflict with relevant policy in the development plan. It may justify the granting of permission when otherwise such a decision could not have been made. That is what happened in Monahan.

[203]In this case I think the approach taken by the Council to the Site A proposal as “enabling development” was appropriate and lawful. The decision to grant planning permission for that development was on its face a rational decision. There can be no dispute about that. So the crucial questions for the court are whether the decision was made on planning grounds and not for some ulterior purpose, and whether the financial considerations taken into account by the Council were relevant to the proposal. I think the answer to both of these questions is “Yes”.

[204]I do not accept that the Council made any error of law when it took into account the payment of £3.75 million that the development on Site A would yield as a subsidy for the development on Site B. This was not, in my view, an immaterial consideration. It was, as a matter of law, material in the sense to which the majority in the Supreme Court in Sainsbury’s Supermarkets referred (see paragraph 168 above).

[205]I reject Mr Fookes’ submission that the only connection between the commitment to the subsidy in the section 106 agreement and the housing development on Site A was that the money was being offered by Abingworth as developer. That contention is not supported by the facts. There was in fact a strong connection, both between the two sites and between the two proposals.

[206]As Mr Taylor and Mr Warren submitted, the connection between the two sites was not simply a matter of geography – in that they are adjacent to each other and separated only by a road. It was also a matter of their history – in their combined use over many years as the two parts of a single mushroom growing operation, which had been owned and run by one company, as if on a single site, until the operation began to fail.

[207]The two proposals were mutually dependent. They were, in effect, a comprehensive scheme for the redevelopment of both sites.The connection between them was a matter of economic reality. The consolidation of the mushroom operation on Site B would not be achieved unless the development proposed on Site A was permitted. This was so when the original proposals were submitted in July 2010. And it was still so after Monaghan Mushrooms had become involved as the operator intending to run the business on Site B once it was redeveloped to accommodate all of the plant. The Council knew that Monaghan Mushrooms was a profitable company, and was prepared to invest in Site B provided the subsidy promised by the development of Site A was released. It knew that there was no prospect of mushroom production continuing in Thakeham unless Monaghan Mushrooms was prepared to make that investment. And it knew that there was no other likely source of the funds required.

[208]The proposals were also directly linked to each other in a practical way. The proposed redevelopment of Site B depended on the financial contribution from the redevelopment of Site A. The latter would only go ahead once the works it was funding on Site B had been completed. The whole operation, including the activity previously undertaken on Site A, could then be located on Site B and would be able to continue in a viable form.

[209]When the revised scheme for the two sites was being considered in September and October 2012, before the section 106 agreement was completed, the Council had to consider whether the contribution of £3.75 million now being offered was necessary to ensure that the Site B development would proceed. In the light of the independent advice it had from Ernst & Young, it satisfied itself that Monahan Mushrooms’ business plan was sound and that a contribution at that level was required.

[210]This is the kind of situation contemplated by the Court of Appeal in Monahan, as described by Kerr L.J. in the second of the two paragraphs I have quoted from his judgment (see paragraph 167 above). This is a case of “composite or related developments”. The relationship between the two proposals was such that they could and should “properly be considered in combination”. The aim of securing mushroom production in Thakeham and the jobs involved in it was a proper planning purpose. Achieving it depended on the injection of capital that would flow from the redevelopment of one of the two sites originally used for mushroom production into the regeneration of the other as a mushroom nursery. This was not a case of unlawful enabling development, or of planning permission being bought or sold. The commitment to funding in the section 106 agreement was not an obligation unconnected with the proposal for housing on Site A apart from its being put forward by Abingworth as developer. It was not an immaterial consideration. The Council was right to take it into account. To have failed to do so would have been to ignore a factor relevant to its decision on the Site A proposal.

[211]I do not accept that the Council failed to consider each of the two proposals on its own merits. As I have said (in paragraphs 150 to 159, and 184 above), it is clear from the committee reports, from the minutes, and from the summary reasons in the two decision notices that the Council did consider each application on its individual merits, whilst recognizingthat the merits of the proposal for Site A included its ability to support the redevelopment of Site B.

[212]I reject Mr Fookes’ submission that the Council’s approach went against any principle in the jurisprudence, and in particular in the decision of the Court of Appeal in Derwent Holdings. In that casethe Court of Appeal applied the principles endorsed by the Supreme Court in Sainsbury’s Supermarkets. The Court of Appeal did not say that the submission of a single application was a prerequisite to those principles being satisfied. It did not say that one part of a composite scheme could only be regarded as financially dependent on another if they were combined in a single proposal. It did not say that the requirement for there to be “a real connection between the benefits and the development”, as Lord Collins put it in his judgment in Sainsbury’s Supermarkets, could only be met in that way. In this case the connection was undoubtedly real, regardless of there being one application not two.

[213]I do not believe that the principles of enabling development are limited to ventures that would protect a heritage asset or a facility that serves or is accessible to the public. And I also reject the submission that those principles do not extend to a financial contribution that would support development undertaken by another company on another site. The jurisprudence does not support either of those concepts.

[214]The scope for enabling development is wide. There are many ways in which it may serve a proper planning purpose. It may fund works of repair or improvement to a listed building. It may fund the protection of a particular habitat. It may fund the provision of a swimming pool for public use, or some other public facility. But that is far from being an exhaustive list of the benefits it may help to provide.

[215]This case may be an example of what Kerr L.J. in his judgment in Monahan described as “compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest”. This can happen in cases of many kinds. It can happen when jobs in a long-established local business will only be saved, or new jobs and investment secured, if a proposal that makes this possible is granted permission though normally it would be turned away. The fact that the business is run by a “private company” does not mean that the jobs and the investment cannot be seen as beneficial in the public interest. Nor does it mean that the enabling development is tainted by an irrelevant or unlawful purpose, or that the economic benefit it will produce should not bear on the planning decision.

[216]On each of these two applications the Council had to ask itself whether, in the public interest, planning permission should be granted. The aim of safeguarding in Thakeham an industry that had been there for a very long time and the jobs associated with it was, in the Council’s view, a legitimate planning objective. It was right about that. The fact that the land and buildings on Site B were going to be owned and used by a company engaged in a commercial enterprise for profit was no bar to the Council taking into account the financial contribution as a material consideration in determining the proposal for Site A.

[217]Finally, I reject the suggestion that the section 106 agreement was either unlawful or inadequate.

[218]The provisions of Schedule 2 to the agreement do not exceed the power to enter into a planning obligation provided by section 106 of the 1990 Act (see paragraph 187 above). They restrict the development of relevant land in a specified way (section 106(1)(a)).

[219]The agreement also satisfies the requirements in regulation 122(2) of the Community Infrastructure Levy Regulations 2010 for a planning obligation to be regarded as “a reason for granting planning permission”. In my view, for the reasons I have already given, the Council could conclude, and effectively did, that the commitments in Schedule 2 to the agreement were “necessary to make the development [of Site A] acceptable in planning terms”, were “directly related to the development”, and were “fairly and reasonably related in scale and kind to the development” (see paragraph 162 above). For the same reasons, therefore, the Council could conclude that the corresponding requirements in government policy in paragraph 204 of the NPPF were satisfied (see paragraph 161 above).

[220]The agreement is not inadequate as a mechanism for the enabling development that the Council took into account. As Mr Taylor and Mr Warren submitted, Schedule 2 to the agreement requires three things. Not only does it require the payment of the financial contribution; italso requires the freehold interest in Site B to be transferred to Monaghan Mushrooms, and the specified works on Site B to be completed. It does not stipulate merely the payment of money. It restricts the development on Site A so as to ensure that the defined works on Site B are carried out in a timely way.

[221]The Council’s committee was not misled about the likely commitments in the section 106 agreement. The members were not told that the funding generated by the development on Site A could or would oblige Monaghan Mushrooms to stay on Site B, or to carry on a mushroom business on that site for the foreseeable future or, therefore, that the jobs involved in that business would always be there. The advice given by the officer in his report for the meeting of the committee on 19 April 2011 was that the section 106 agreement could not guarantee the survival of the mushroom business on Site B, but that without the funding from the redevelopment of Site A the business would fail (see paragraphs 171 and 173 above).

[222]When the revised proposal for Site B was submitted the Council was reassured byMonaghan Mushrooms that its investment in Site B was commercially worthwhile. This was made plain in the “Overview of capital project” in the Capital Project Summary of 30 March 2012 (see paragraph 176 above). In the report for the meeting in September 2012 the officer advised the members that granting planning permission for the Site A development with the financial contribution to the development on Site B would, in his view, stimulate a substantial investment by Monaghan Mushrooms (see paragraph 179 above). I do not think that in the circumstances this was unreasonable advice.

[223]I therefore accept the submissions made by Mr Taylor and Mr Warren on ground 5 of the claim. In particular, I accept their submission that the Council could reasonably conclude, and did, that the section 106 agreement was an adequate and effective means not only of securing the financial contribution from the development of Site A but also attracting the further investment Monaghan Mushrooms were intending to make on Site B. It is not a valid criticism of the agreement that its requirements might have been more onerous than they were. I think the Council took a realistic view of the commitments that could be obtained. It understood those commitments. And it could reasonably give them the weight that it did.

[224]Grounds 3, 4 and 5 of the claim all therefore fail.

Conclusion

[225]I refuse the renewed application for permission to apply for judicial review on ground 2 of the claim, and dismiss the claim itself.