Residents’ challenge to golf course fails

27 May

A group of local residents (“Cherkley Campaign Ltd”) had challenged the decision of Mole Valley D C to grant permission for a new golf course in the Surrey Hills AONB. They succeeded in the High Court, but that decision has just been reversed by the Court of Appeal (The Times Law Report 24 May 2014).

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golf course planning

A group of local residents (“Cherkley Campaign Ltd”) had challenged the decision of Mole Valley D C to grant permission for a new golf course in the Surrey Hills AONB. They succeeded in the High Court, but that decision has just been reversed by the Court of Appeal (The Times Law Report 24 May 2014).

Part of the Campaign’s case was that (a) the relevant policy of the Local Plan required the applicant to demonstrate a “need” for the golf course; and (b) that such a need had not been demonstrated. Both these arguments were accepted by the High Court Judge, but rejected by the Court of Appeal.

Policy

The relevant policy was REC12, which contained 6 criteria against which golf course proposals would be judged. None of these contained a “need” requirement. However, paragraph 12.71 stated that: “Applicants proposing new courses will be required to demonstrate that there is a need for further facilities”.  Para. 1.10 stated that: “… the supporting text indicates how [a policy] will be implemented by the Council. To interpret the policies fully, it is necessary to read the supporting text”. The Plan also stated in para. 12.70 that there was “no overriding need for further golf courses in the District”.
In para. 16 of its judgment the Court of Appeal held that supporting text “is plainly relevant to the interpretation of a policy to which it is related, but it is not itself a policy or part of a policy”. It followed that the policy did not contain any requirement to demonstrate a need, even though the planning officer in his report to committee advised that the policy did contain such a requirement, that the applicant had not met it and recommended refusal!

Need

The Court of Appeal then considered the meaning of the word “need” in the context of this case. In para. 28 the Court said: “The word “need” has a protean or chameleon-like character … and is capable of encompassing necessity at one end of the spectrum and demand or desire at the other. The particular meaning to be attached to it … depends on its context.
Referring to the actual proposal to create an “elite facility” and in view of the statement in para. 12.70 that there was no “overriding need”, the Court ruled in this particular case that “need” was “… to be understood in a broad sense so that the requirement is capable of being met by establishing the existence of a demand for the proposed type of facility which is not being met by existing facilities”.

Key Points:

1.  Supporting text is not part of a policy.
2. “Need” can have a wide range of meanings and must be construed in its context.

Peter Towler

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