Langley Park School for Girls v London Borough of Bromley & Anor, Court of Appeal - Civil Division, July 31, 2009, [2009] EWCA Civ 734

Resolution Date:July 31, 2009
Issuing Organization:Civil Division
Actores:Langley Park School for Girls v London Borough of Bromley & Anor
 
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Neutral Citation Number: [2009] EWCA Civ 734

Case No: C1/2009/0397/QBACF

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISON

ADMIN. COURT: MR JUSTICE WYN WILLIAMS

C0/10206/2008

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2009

Before :

THE CHANCELLOR OF THE HIGH COURT

LORD JUSTICE MOORE-BICK

and

LORD JUSTICE SULLIVAN

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Between :

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(Transcript of the Handed Down Judgment of

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Mr Richard Langham (instructed by Kingsley Smith Solicitors LLP) for the Appellant

Mr John Steel QC & Mr Andrew Sharland (instructed by London Borough of Bromley) for the Respondent

Mr Thomas Hill QC (instructed by Trowers & Hamlins LLP) for the Interested Party

Hearing date : Thursday, 2nd July 2009

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JudgmentLord Justice Sullivan:

Introduction

  1. This is an appeal against the Order dated 25th February 2009 of Wyn Williams J. dismissing the Appellant's application for judicial review of a grant of planning permission dated 5th August 2008 by the Respondent to the Interested Party (``the planning permission'') for the demolition of existing school buildings, the retention and refurbishment of certain existing buildings, and the construction of a new secondary school including provision of a 600 seat enhanced performance space, a new 9 court indoor sports hall, and other facilities at Langley Park School for Boys, Hawksbrook Lane, Beckenham, Kent (``the Boys' School'').

  2. The Appellant challenged the planning permission on two grounds:

    i) the Statement of Reasons for granting planning permission did not reflect the Respondent's decision-making process; and

    ii) the Respondent failed to consider the possibility of an alternative scheme on the site, referred to as ``Option 1''.

  3. The hearing before Wyn Williams J. was a ``rolled up'' permission and substantive hearing. Wyn Williams J. refused permission to apply for judicial review on ground i), granted permission on ground ii), but dismissed the claim. Dyson L.J. granted permission to appeal on ground ii), but refused permission to appeal on ground i). The Appellant does not renew its application for permission to appeal on ground i).

    Factual Background

  4. The ``Background and relevant facts'' are set out in some detail in paragraphs 3 - 22 of the judgment of Wyn Williams J. [2009] EWHC 324 (Admin). The 6.9 ha Boys' School site is designated as Metropolitan Open Land (``MOL'') in the Bromley Unitary Development Plan (``UDP''). To the east, also on land designated as MOL, is Langley Park School for Girls (``the Girls' School'').

  5. There is a substantial amount of existing floor space on the Boys' School site. The Report of the Chief Planner to the Respondent's Development Control Committee at its meeting on 17th June 2008 (``the Report'') told members that there was a total of 13050m² existing floor space with a footprint of 9882m² (including temporary buildings). The plans of the site show that, broadly speaking, the buildings, together with areas of hard standing such as car parks, are located in the south west half of the site. Hawksbrook Lane runs along the southern boundary of this part of the site. The north east half of the site (to the north of the Girls' School) is open land laid out as sports grounds.

  6. MOL in Greater London ``serves the same purpose as Green Belt and will be given the same level of protection'' (paragraph 8.19 of the UDP). Policy G2 in the UDP says that:

    ``Within Metropolitan Open Land (MOL) as defined on the Proposals Map, permission will not be given for inappropriate development unless very special circumstances can be demonstrated that clearly outweigh the harm by reason of inappropriateness or any other harm.''

    It is common ground that ``any other harm'' would include injury to

    the openness and visual amenity of the MOL because Policy G2 also

    states that:

    ``The openness and visual amenity of the MOL shall not be injured by any proposals for development within.... the MOL which might be visually detrimental by reasons of scale, siting, materials or design.''

  7. Following approval from the DfES for the capital project to rebuild the Boys' School under the ``Building Schools for the Future - One School Pathfinder'' initiative, the Frankham Consultancy Group was appointed to carry out a feasibility study. The feasibility study was completed in November 2007 (the ``Study''). Paragraph 3.5 of the Study dealt with ``Appraisal of Location Option''. Having said that it was the desire of both the Boys' School and the local planning authority to have ``least impact on the Metropolitan Open Land'', the Study said that there were ``three obvious and viable options'', looked at the advantages and disadvantages of each option, and made a recommendation as to the most suitable location.

  8. The three options, ``Front of School'' (Option 1), ``Rear Field Option'' (Option 2), and ``Middle Site Option'' (Option 3) were illustrated. The illustrations are purely schematic. Option 1 sited the new school aligned on an east-west axis along the Hawksbrook Lane frontage with a shorter north-south leg occupying the site of the existing 6th form block and the tennis courts to its north. In Option 2 the new school was sited on an east-west axis wholly within the playing fields in the north eastern part of the site. Option 3 sited the new school on a north-south axis in the middle of the site. In this option the southern part of the new school occupied the site of the existing 6th form block, and the tennis courts to its north, and the northern part of the new school occupied the western part of the playing fields. In simple terms, Option 1 very largely avoided building on the open, north-eastern part of the site. In Option 2 the new school effectively occupied the whole of the playing fields, leaving some open land around the perimeter of the new buildings. In Option 3 the new school occupied part of the playing fields.

  9. Despite these differences between the Options, and the stated desire to have ``least impact on the MOL'', the feasibility study did not assess their relative impacts on the openness and visual amenity of the MOL. Although paragraph 3.5 of the Study set out a number of factors ``For'' and ``Against'' each Option, these factors did not include the extent to which each Option would have an impact on the MOL. Having considered the Study the Boys' School chose Option 3 ``because the advantages of this Option, unlike the other two Options, clearly outweighed the disadvantages''.

  10. The planning application was submitted on 17th April 2008. The Study was not presented to the members at the meeting on 17th June 2008, but three documents were available, in addition to the application and application drawings: a ``Design and Access Statement'' prepared by the Frankham Consultancy, an ``Identity and Context Plan'' prepared by the same firm, and a ``Supporting Planning Application Statement'' (``the Supporting Statement'') prepared by a firm of planning consultants.

  11. The Design and Access Statement said that the site was ``designated as an important piece of Metropolitan Open Land'' and described the three siting options. The various factors ``For'' and ``Against'' each option were set out in much the same terms as in the Study. The impact of the options on the MOL was not mentioned. Although Option 3 was the Boys' School's preferred Option, the siting of the proposed buildings in the planning application differed from that shown in Option 3. The Design and Access Statement explained that a desire not to disrupt the school's operations during construction had led to the siting of the new buildings being moved ``northward and slightly eastward''. The ``Site Arrangement'' plan shows that this resulted, in effect, in a siting and layout which was a hybrid between Option 3 and Option 2. Since the new buildings were not merely moved northwards, but were also moved eastwards, they occupied a larger part, more than half, of the existing playing fields. The implications for the MOL of this changed siting were not addressed in either the Design and Access Statement or the Identity and Context Plan, which again described Options 1 - 3 and their advantages and disadvantages, but did not deal with their impacts on the MOL.

  12. The Supporting Statement explained the selection process for the chosen site layout, and clarified ``some of the key issues determining the ultimate selection of the preferred layout/siting option'' (para. 8.15). The three Options were briefly described and the arguments ``For'' and ``Against'' were summarised. One of the arguments ``Against'' Option 1 was that:

    ``A four storey building will have a significant visual impact upon the Metropolitan Open Land when viewed from key vantage points.''

    The Supporting Statement said that:

    ``Clearly the negative aspects of this option significantly outweigh the advantages.'' (8.17).

  13. One of the arguments ``Against'' Option 2 was that it would have a ``significant impact on views of designated Metropolitan Open Land when viewed from vantage points to the east.'' An argument ``For'' Option 3 was that:

    ``A centrally located building would help to enhance the perception of the school being set within grounds when viewed from both an easterly and westerly vantage point. This will enhance the perception of openness from a greater variety of vantage points than the existing school, thus promoting the visual objectives of Metropolitan Open Land Policy.''

    No adverse impact on MOL was mentioned in the arguments ``Against'' Option 3; and it was said that as a result of the Study it was:

    ``chosen as being the optimum layout...

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