Judgments

 
QBD, ADMINISTRATIVE COURT

Neutral Citation Number: [2016] EWHC 1897 (Admin)

CO/1236/2016 

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT 

Royal Courts of Justice 

Strand

London WC2A 2LL 

Wednesday, 6 July 2016

 B e f o r e: 

MR JUSTICE COLLINS 

 Between:

STRYJAK 

Appellant

v 

LONDON BOROUGH OF HOUNSLOW 

Respondent

and 

BAM CONSTRUCT UK LIMITED 

EDUCATION FUNDING AGENCY 

THE NISHKAM SCHOOL TRUST

Interested Parties 

 Computer‑Aided Transcript of the Stenograph Notes of  

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Ms Celina Colquhoun and Mr James Corbet Burcher (instructed by Irwin Mitchell LLP) appeared on behalf of the Appellant 

Mr Richard Harwood QC (instructed by HB Public Law) appeared on behalf of the Respondent

Richard Honey (instructed by the Government Legal Department) appearing on behalf of the Second Interested Party

Mr Richard Turney (instructed by Trowers & Hamlins LLP) appeared on behalf of the Third Interested Party 

J U D G M E N T 

(Approved) 

Crown copyright©

MR JUSTICE COLLINS:  1. This is a claim for judicial review of a decision of the London Borough of Hounslow to grant planning permission for the erection of a school on land at Syon Green, Isleworth, the land in question being Metropolitan Open Land ("MOL").

2.  The decision to grant was made on 25 January 2016.  This application was made on 7 March, and Dove J on 4 April directed a rolled‑up hearing and also that there should be a core bundle provided and skeleton arguments.  There has been, I am afraid, a singular lack of attention to the terms of Dove J's order.  The core bundle came far too late and did not contain everything that it ought to have contained.  I have had to go to consider documents in other files which had been lodged.  Equally, the skeleton arguments were not served in time.  It is important that orders of this nature are obeyed, and it does not help the court or the parties if matters are dealt with in the way that they have been dealt with in this case.

3.  The purpose behind Dove J's order was the need for this claim to be heard expeditiously because it is important, if the claim does not succeed, that the school is able to start the necessary building works so that it is ready to receive pupils by September 2018.  Obviously any delay will put that at risk, assuming that there is no merit in this claim.

4.  The land in question extends to some 8.8 hectares.  It had contained a private sports ground.  That had not apparently been in use for some seven years or so, but the public had access to the land and had used it for various recreational purposes.  That was brought to an end in July 2015 when the land was purchased by the Department for Communities and Local Government who have, I gather, erected some barrier to access.  Nevertheless, it is an important open space for the purposes of what one might generally call the health of London.

5.  The claimant is a member of an organisation called Keep Osterley Green ("KOG"), which actively opposed the proposed development, took part in the hearing before the relevant council committee and also made representations before the committee hearing.

6.  I should say that, as was obvious, this was an application which was contentious and accordingly and properly was dealt with in some detail by the officer concerned and by the council committee.  In fact, there is a very lengthy and detailed officer's report and the hearing before the committee covered some four and a half hours and dealt only with this application.  So there was clearly a thorough consideration of all matters which were considered to be material.  That, of course, does not of itself necessarily mean that all that ought to have been done was done, and does not mean by itself necessarily that there were no errors.  

7.  The planning permission involved the erection of a part two‑storey and part three‑storey free school, which was described as an all‑through school, and also there was ancillary access parking, sport pitches and a multi‑use game area.  As I have said, the area in question was 8.8 hectares and the development, together with the sports pitches and game area, amounted to just under half of that total.

8.  The applicants are the Nishkam School Trust.  That runs two free schools, one in Wolverhampton and one in Birmingham.  The provision is that 50 per cent of pupils to attend the school should be members of the Sikh faith.  Fifty per cent are "other", that is to say any child of whatever background.  

9.  An all‑through school means one which caters for pupils throughout the whole of their educational process, that is to say from normally the age of four or five through to A‑levels and the equivalent of sixth form.  It thus covers both primary and secondary education.  The Trust has obtained funding from the Education Funding Agency.  The Trust and the Funding Agency have appeared as interested parties and have made representations, and counsel has appeared on behalf of each.  The other interested party was the company which was due to construct the building.  They have understandably not played any active part in the claim before me.

10. There are, as was accepted by the officer and so by the council, considerable advantages in the all‑through form of education.  In the officer's report, they are identified in paragraph 4.13.  What is set out there are the following advantages, which are not achievable if a school is split on different sites.  They are said to include:

"‑ Pupil organisation based on ability not age; 

‑ Developing a long term commitment from working extensively with parents to shape the school and wider community ethos; 

‑ Pastoral coherence throughout all Key Stages with resulting positive effects on relationships, discipline and pupil aspirations; 

‑ A curriculum for more specialist teaching at primary level; 

‑ Early identification of Gifted and talented pupils; 

‑ Early sitting of GCSE, A‑levels and undertaking of foundation degrees."

11. In addition to that, the Trust itself emphasised for their purposes the importance of enabling teachers to continue to teach pupils who would span primary and secondary (and if there were a split between primary and secondary there would be the difficulties in maintaining that), and secondly the need for ensuring that tutorial arrangements were maintained over that otherwise split period.

12. The result of that was that it was necessary to have the whole school on the same site, or if that were impossible, at the very least with a physical connection between two separate sites.  Effectively, that would mean that they had virtually to be adjacent one to the other.  That, of course, is of considerable importance in assessing whether any alternative site might have been available.

13. The Trust operates a temporary school in the council's area.  That opened in September 2013 but is limited to a relatively small number of pupils.  The limit of that will be reached by September of this year.  The proposed school will cater for some 1,400 pupils altogether, thus there would be 700 or thereabouts who would be of the Sikh faith and 700 others.

14. When the matter was opened yesterday there was an application for disclosure which had formally been made on Friday.  It was ridiculously late, and that in itself meant that it was an application which needed to be exceedingly compelling for me to decide that it was appropriate to grant it.  In fact, I refused it.  The details and reasons for that can conveniently be dealt when I come to the points which are covered later in this judgment.

15. Since the development is on a MOL it is necessary to show that there are very special circumstances justifying development such as that with which this case is involved, because such development is contrary to the requirements of the Local Plan and is inappropriate in Metropolitan Open Land.  It is equated in that respect essentially to Green Belt development.  It is common ground that in the circumstances it is necessary to exclude any reasonable alternative site which would not be similarly inappropriate.  The correct approach is helpfully set out by Sullivan LJ in The Governing Body of Langley Park School for Girls v London Borough of Bromley 2009 EWCA (Civ) 734.  That case concerned the effect of the development on an MOL, so it covered the same area as this.  In paragraph 52 Sullivan LJ, so far as material, said this:

"It does not follow that in every case the "mere" possibility that an alternative scheme might do less harm must be given no weight.  In the Trusthouse Forte case the Secretary of State was entitled to conclude that the normal forces of supply and demand would operate to meet the need for hotel accommodation on another site in the Bristol area even though no specific alternative site had been identified.  There is no "one size fits all" rule.  The starting point must be the extent of the harm in planning terms (conflict with the policy etc.) that would be caused by the application.  If little or no harm would be caused by granting permission there would be no need to consider whether the harm (or the lack of it) might be avoided.  The less the harm the more likely it would be (all other things being equal) that the Local Planning authority would need to be thoroughly persuaded of the merits of avoiding or reducing it by adopting an alternative scheme.  At the other end of the spectrum, if a Local Planning authority considered that a proposed development would do really serious harm it would be entitled to refuse planning permission if it had not been persuaded by the applicant that there was no possibility, whether by adopting an alternative scheme, or otherwise, of avoiding or reducing that harm.  

53.  Where any particular application falls within this spectrum; where there is a need to consider the possibility of avoiding or reducing the planning harm that would be caused by a particular proposal; and if so, how far evidence in support of that possibility, or the lack of it, should have been worked up in detail by the objectors or the applicant for permission; are all matters of planning judgment for the Local Planning authority.  In the present case the members were not asked to make that judgment.  They were effectively told at the onset that they could ignore [the relevant point] ..."

16. That was a case in which the committee did not have before it the crucial matter.  Here, there can be no doubt that the committee did have before it the relevant matters.  The issue is whether they were properly put before the committee, and by properly I mean whether, in all the circumstances, the committee were not given the information that they ought to have been given to enable them to reach a proper planning decision.

17. Essentially the claimant relies on two grounds, although ground 1 is somewhat diffuse.  The major allegation is that the assessments made of alternative sites were not rigorous and did not properly consider all possible alternatives.  The ground has been extended to raise an alleged failure to deal properly with the transport problems, because it is accepted that this particular site has very poor access by public transport.  Further, it is said that local children would not be advantaged.  True, if there is oversubscription then distance is a relevant factor and the evidence is that it is already potentially oversubscribed.  But it is said that the evidence does not support the view that in any event the likelihood would be that local children would be attracted.  

18. It is said "local" is not defined, and it is not clear what is meant by "local".  Is it to include the borough, or is it separate from the borough?  It is, of course, to be noted that the relevant plan is described as a Local Plan which is borough‑wide.  What is said is essentially this being a day school, that one expects those of primary age within two miles, those of secondary age living within three miles, to be the likely people who would take it up.  The reason for that is obvious; two and three miles are material for the purpose of transport arrangements being provided.

19. Further, the complaint is made that an aspect was not considered in the officer's report, namely that the development would or should, it is said, have been linked to the provision of another free school called the Bolder Academy.  The relevance of that was that the Bolder school would be a development on a site which at the moment contains the ground for a rugby club known as the Grasshoppers, and the arrangement that it was said would result if this development were allowed was that the Grasshoppers could relocate to the part of the MOL which was not covered by the school, and an academy (which would be another free school known as the Bolder Academy) would be able to be allocated to that particular area.  This stems from the evidence given by Ms Fitzgerald, who has made a statement on behalf of the EFA.  She said in that statement that delays for the permanent site for the Nishkam School have a further effect on the delivery of another free school, namely the Bolder Academy, and therefore affect the ability to provide further school places to meet identified basic need, and talks of a land swap that would be able to result.  

20. That land swap and that proposal is based upon an agreement made in December 2015 whereby there were some financial advantages in carrying out the land swap in question.  However, it is apparent that the particular development with which this case is concerned is not in any way dependent upon the Bolder development.  There is no reason in principle why the Grasshoppers should not relocate in any event to the balance of the relevant site and it is difficult to see that that arrangement, however desirable it may be, is a proper consideration in planning terms as to whether this particular development is appropriate.  Certainly, it has been the case on behalf of the ‑‑ I call it the opposition, because I include in that the interested parties and the defendant ‑‑ that the Bolder Academy point really is not directly material.

21. That leads me into the application for further discovery which was, it seems, triggered by the Bolder question.  I should add that the arrangement made in December 2015 was known to the objectors, was raised before the committee and in the objections, and thus was open to be considered if it was considered appropriate by the committee.  The fact that it was not directly referred to in the officer's report is in the circumstances nothing to the point.  The disclosure that was requested was extensive; essentially any material which related to the Bolder Academy and all correspondence or communications between the defendant and EFA relating to anything to do with this issue.  As I say, that was left far too late but in any event it is not, in my judgment, of any materiality in relation to the issues that I have to decide.  Accordingly, as I say, it was refused.  

22. I should add that there has been no application by Bolder.  It is also brought in on yet a further sub‑ground in ground 1, namely an attack on the transport arrangements that have been considered.  It is said that it was improper to ignore in considering the transport effect the possible developments on other sites.  But that, in my view, is not a correct approach.  If there are further developments which are applied for then no doubt the transport arrangements for them will be considered, but in the absence of any such it is not necessary to consider in detail what the effect on possible future developments might be.  That does depend to an extent, I accept, on circumstances but there is nothing in this case that suggests that that was something which needed to be taken into further account.

23. A further point raised relates to need.  At the committee hearing the objectors, including the claimant and KOG, accepted that they could not and did not challenge need, but the point they make (and continue to make) is that that need is covered by the allocations within the Local Plan for school development, and in those circumstances it is said that it was not proper to consider that need for school places should take precedence over the harm to the MOL in this case.  It is, as I shall come to, to be noted that this aspect is fully dealt with in the officer's report.  Those, I think, are effectively all the sub‑grounds that are relied on to constitute what is said to be ground 1.  It seems to have expanded itself to some extent during the course of submissions.

24. The second ground relies upon an alleged breach of paragraph 74 of the NPPF and I will come to that in due course.

25. As is usual, particularly for developments which are known to be likely to be contentious, there were preliminary discussions with the relevant council officers.  Such discussions, as I say, are routine and indeed are essential if the planning process is to be dealt with in a sensible, practical and expeditious fashion.  I have been referred to some of the material correspondence.  In April 2013, the officer concerned wrote to the representative of the Trust and, so far as material, said this in relation to MOL policy:

"As the proposal does not fall within one of the above acceptable categories, development of the proposed scale and use will not be acceptable on the Metropolitan Open Land unless you can demonstrate very special circumstances.  

In order to show very special circumstances, you must first prove that there is an exceptional need for the proposal.  We understand that there is a shortage of primary and secondary school places in the Borough, and we recommend that you work closely with the education department in order to demonstrate that this need cannot be met from existing schools.  You must then show that the proposal will meet some of this need.  

Furthermore once you have established the need, you should undertake a sequential test to prove there are no less harmful sites available.  This assessment should take place using the minimum required standards ... and should include flexibility in the school's format.  For example you should investigate options that include siting the primary, secondary and playing field elements on different sites.  

We understand that it is important to the school that it is on a single site and it does not want the primary and secondary schools to appear as two separate institutions.  However, in the absence of further evidence about the requirements for co‑location and evidence that options for potential disaggregation have been explored, very special circumstances for allowing development on Metropolitan Open Land in the current format have not been demonstrated."  

    He went on to underline the importance of including all pieces of land within the agreed areas in the site search, and even alternative MOL land should not be dismissed, because it might be less harmful than development on this particular MOL.  He made the point that if the council recommended approval, it might be called in by the Mayor of London or by the Secretary of State.  The letter recommended that the Trust built on what was set out in the letter and then came back to the council.

26. In October 2013 there was a further meeting and the criteria for finding an alternative site were set out.  It should be, it was said, within three miles of Hounslow Central Tube station and a minimum site area of 0.98 hectares, that is, the primary element only over two storeys.  There was also later a suggestion that it could be extended to four storeys which, of course, could involve a smaller footprint for the necessary construction.  But, the letter went on:

"We did, however, agree that the following would be appropriate reasons to find the site unsuitable.  No additional site available that could be physically linked to the site above, which could form the total site of 2.2 hectares.  Not available and deliverable in the timescale.  This assumes the need to be on‑site in September 2016, which is based on an intake of half over the next two years.  Inaccessible location, taking into consideration the physical barriers of the borough." 

(Quote unchecked) 

    So it was made clear there that the council's officer's view was that a minimum of 2.2 hectares ‑ that is for the building, of course, and excludes the playing ground area ‑ would be what was required.

27. I think it is not necessary to refer specifically to the further letter.  There were, of course, considerations of the design and other planning matters such as noise and so on, but those are not matters which concern me in this claim.

28. There was a letter of 17 April 2015 following another meeting in which this is said:

"As discussed at the meeting, we would expect to see an updated sequential assessment building on the original assessment undertaken to refer to the emerging Local Plan policies, and any changes to identified sites in the intervening time period, and with particular regard paid to how sites higher up the sequential assessment are not be deliverable.  Whilst the proposed educational use would form part of the case for very special circumstances for the development within the MOL, we would expect any development proposals to demonstrate why this is the most appropriate site for this use, but there is there is a clear and established local need which this proposal would provide for, and that in all other respects the development is acceptable, paying particular attention to the impact of the built form on the special character of the wider area."

(Quote unchecked)

29. That does make it clear that in the view of the officer then, local need had to be provided for.  Ms Colquhoun has submitted that, as I have said, there is no definition of what was meant by "local" and the point has been taken that there is no proper evidence to suggest that the 50 per cent non‑Sikh will be likely to be local.  It seems to me that to the extent (following what Sullivan LJ said in the case I have cited) that there is an entitlement in the council to adopt a sensible view, the likelihood will be that those who wish their children to attend the day school will be likely to come from those who live close enough to mean, as a general proposition, that access to and from the school is likely to be as convenient as possible.  Of course, we know that as it is oversubscribed, distance will be a relevant consideration.

30. That is what in due course was considered to be appropriate in the officer's report.  As I have said, there is no doubt that the need exists at present.  There are no applications for school development in any of the areas which the Local Plan has identified as appropriate in order to meet that need.  This school will, so far as the council is concerned, be available to assist in meeting that need. If, but only if, that consideration can be regarded as an unreasonable one, would there be any likelihood that this particular attack on the decision would succeed, and as it seems to me the claimants do not come anywhere near showing that that view was in any way unlawful.

31. I should now turn to the relevant parts of the officer's report, because that obviously is of importance in the context of this case.  If, but only if, an officer's report is such as misleads the council in the decision that they reach, would it normally be appropriate to grant relief.  It can, of course, mislead by failing to draw attention to any material factor or by mis‑stating any particular matter.  But it is important to remember at all times that the council is exercising a judgment and unless it can be shown that a particular failure (if there was one) to deal with a particular point or a failure (again, if there was one) to identify what are said to be errors in the process by which information has been obtained could any success result, because the council is entitled to form its view as a matter of judgment, provided it is properly informed, on the ultimate question, which is whether there were very special circumstances to justify the permission being granted in this case.

32. At the outset of the officer's report in the summary the point is made that through the submission of the Site Sequential Assessment demonstrating the lack of available alternative sites, coupled with the identified and known need for school places both in the borough as a whole and in the local area, and the retention of much of the site as open space, it is considered that very special circumstances had been adequately demonstrated to justify the proposed development.

33. The report then went on to identify the objections that had been raised by various objectors who had been notified of the proposals.  The sequential site assessment was said to have been defective in that ‑ and I will come to the detail in a moment ‑ there had been a number of failures in identifying alternative possibilities.  A recent statement by the claimant identifies what she says are these various defects.  Essentially it is said that the methodology was defective because according to the research undertaken by KOG some landowners had not been notified, no replies had been received from others, some had been in the ownership of the council and not made available for no good reason, indeed no reason at all had been given for saying that they were not available.  She sets out in her statement in paragraph 47 various of the matters.  The point she makes about rejecting for size, that above 0.98 of a hectare is a bad point because it was clear that 2.2 was regarded as needed.  Then she sets out in paragraph 48 various other objections.  But she specifies a number of sites that she says KOG had itself considered which were not considered by the claimant and so not by the council.  Three of those were in council ownership.  Suffice it to say that the council has made it clear that they are not available, and short of an allegation of bad faith which really cannot be made, there is nothing further that can be pursued in relation to that.  The others frankly do not indicate that there would have been any likelihood or any reasonable possibility indeed that the owners would have agreed to permit development such as this on the land.

34. I turn to the officer's report.  It was accepted that the same site for the school, or at the very least physical connection, was necessary.  It seems to me that it is unarguable that that was an unreasonable view for the council to accept and adopt.  That being so, the minimum was 2.2 hectares without playing fields.  It may be said that playing fields could have been on a separate site without prejudicing the single school.  One can see the desirability if possible of playing fields being on the same site as the school itself, but if there were no other sites which were suitable even applying the 2.2 approach, and that was what the alternative site exercise had established, then obviously one can add in the desirability of the playing field being equally available.  Of course, a playing field keeps the site open so far as the playing field is concerned, and that is what it was originally ‑ a private playing field.

35. There is also raised an issue in relation to a nursery.  This application did not include a nursery, but the Trust have made it clear that they might well want to construct in the future a nursery to go with the all‑through school and obviously this site would give the space for that to be achieved.  Again, that no doubt would be a future advantage and like the playing field, if there was no other available suitable site then it is no doubt a good thing if that availability for a nursery existed.  But it was by no means an essential part of this particular application, and if it is to be wished for in the future then an application will have to be made to construct it.

36. As I said in argument, it seems to me that once one accepts that the council was acting reasonably in taking the view that it was persuaded that the one site for the all‑through was necessary and once one recognises that no reasonable alternative was available to achieve that, the argument based upon the alleged failures in the sequential approach falls away.  I appreciate that there are arguments raised as to the detail of rejection of some sites but it is not appropriate or indeed possible for this court to go into those details.  One would have, I suppose, if that were an exercise that it was proper to carry out, to consider each individual one in detail, and frankly that is not an approach which is appropriate for judicial review of a decision such as this.  Accordingly, the main basis upon which ground 2 was put forward, in my view, is not established.

37. I should note in this regard that in paragraph 7.37 of the officer's report this was said:

"It was agreed with the Local Planning Authority that a site would be considered unsuitable if it was above 0.98ha but no additional site was available that could be physically linked to the site to form a total site area of 2.2ha, as this would prove too difficult for the operation of the 'all‑through' school, which places emphasis on the continuum of mixing throughout the school, of teachers working at all ages and pupils of different ages mixing, and potentially problematic in terms of site assembly, and consequently deliverability. 

73.8.  The sequential assessment was based on an assessment of the site's suitability, availability and deliverability to fulfil the needs of the School.  Five were unsuitable for financial reasons, a further eight due to deliverability, with either schemes being developed out or clear intentions to develop the sites in accordance with extant planning consents, whilst the remaining sites ... were unsuitable due primarily to unavailability, but also a combination of the other two key factors in some instances." 

38. That, it seems to me, is as I have said an assessment which I cannot and should not go behind.  What the claimant is doing is simply arguing on the facts and not identifying any error of law, and indeed all these points were put to the committee during the lengthy decision to which I have already referred.

39. So far as "local" is concerned, that was dealt with in 7.114 and 7.115, where this is said: 

"The proposal is for an 'all‑through' school in an area where there is a demonstrated need for a primary school and a secondary school.  Whilst the school is a faith school, the admissions policy is only allowed to accept 50% of pupils on faith grounds.  In the case of Nishkam School, the first category for admissions is children's of parents practising a faith.  The second category, for open places, is allocating randomly.  If there is an oversubscription in category 1, then the places allocated will be subject to distance from the school.  As a local school in an area of local need, it is anticipated that a large proportion of pupils will come to the school from the local area, either on foot, or by public transport.  As the school reaches capacity with children progressing through the school into Key Stage 3, 4 and 5, it is expected that the use of public transport is expected to increase."

    That, as it seems to me, is a perfectly reasonable approach for the report to have made.

40. It is worth, too, noting the conclusions reached in the report before considering various detailed matters.  That is in paragraph 7.61, where this is said:

"This is an approved and funded school provider who has some unique requirements for a large site.  This is accepted by the Department for Education, the Education Funding Authority and the London Borough of Hounslow's School Place Planning Team.  

7.62.  The school will address needs identified by the Council and is located in the general location to meet Council's educational requirements, in a timely way.  There is no alternative site available to this school or alternative proposals that render this school unnecessary.  The proposal is a necessary part of place planning to meet the Borough's educational need."

 And then in 7.65 it is said: 

"By its nature, the proposal is inappropriate development in the MOL.  Policy GB1 of the Local Plan says that the council will protect MOL by ensuring that any development is not inappropriate and meets the purposes of Metropolitan Open Land.  The fundamental aim of the MOL is to protect open characteristics within the metropolitan area by keeping land permanently open.  It is considered that allowing a school on this site will fulfil the aims of the MOL.  The building will be surrounded by sports pitches, so the majority of the site will be kept permanently open."

    and the building park is 2.2 hectares, the balance being the open playing field. 

41. The development educational plan, if I can call it that, is policy CI2 in the Local Plan.  That provides, under the heading "We Will Expect Development Proposals to":

"(h) Deliver new schools or expanded existing schools in the locations that are included in the development plan as site allocations unless a robust case for not providing or expanding a school at that location can demonstrate that:

I.  The school accommodation is not required in that part of the Borough in the Plan period; or

II.  A development for school use at that location would not be viable because it would not meet funding requirements."

And (i) says:

"Demonstrate that a new or expanded education facility, where the site has not been allocated for education use, will provide for an unmet demand for school places;"

42. So the policy there makes it plain that it is possible to go beyond sites allocated for education purposes within the Local Plan if the circumstances are such as justify it.

43. In all the circumstances, it seems to me that none of the matters raised in ground 1 are such as show that there was any unlawful (which in this context means a Wednesbury unreasonable) approach by the council, or perhaps I should say in the officer's report, as the recommendation for approval was in due course accepted by the Committee by a majority with, I think, two dissentients after, as I said, a very lengthy consideration between 7.30pm and shortly after midnight.

44. I turn therefore to consider the second ground, which is the alleged breach of paragraph 74 of the NPPF.  The NPPF, as its introduction makes clear, sets out the government's planning policies for England and how they were expected to be applied.  It sets out, it is said in paragraph 1:

"... the Government's requirements for the planning system only to the extent that it is relevant, proportionate and necessary to do so."

45. It underlines the point that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.  The main purpose of the NPPF is to achieve sustainable development.  There then follow over 200 paragraphs which are supposed to indicate what is covered by and what is meant by "sustainable development".  But there are three elements, namely economic, social and environmental.  "Economic" involves supporting growth and innovation; "social" means supporting strong, vibrant and healthy communities; and "environmental", protecting and enhancing the environment.  Schools and education I suppose could be said to come in both economic and social to an extent.  The NPPF contains a presumption in favour of sustainable development.  Paragraph 12 says: 

"This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making.  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.  It is highly desirable that Local Planning authorities should have an up‑to‑date plan in place." 

Paragraph 13, which in my view is of some importance, provides: 

"The National Planning Policy Framework constitutes guidance for Local Planning authorities and decision‑takers both in drawing up plans and as a material consideration in determining applications."

46. This, as I see it, makes it plain that the NPPF is not intended to be a rigid document, so that if there is a failure to comply with the words of any particular paragraph that would not be fatal to an application for planning permission.  The reality is that it is necessary to bear in mind the general framework, the general approach, and to consider the individual circumstances of any particular case in deciding whether a particular development is or is not appropriate.  

47. Paragraph 74 deals with existing open spaces.  This is one of the paragraphs in Part 8, which is headed "Promoting healthy communities".  Perhaps before going to 74 I should read 73 too, which has some materiality.  Again, perhaps I should go earlier because under this particular heading schools and access to open spaces are both considered: 

"72.  The Government attaches great importance to ensuring that a sufficient choice of school places is available to meet the needs of existing and new communities.  Local planning authorities should take a proactive, positive and collaborative approach to meeting this requirement, and to development that will widen choice in education.  They should: 

‑ give great weight to the need to create, expand or alter schools; and

‑ work with schools promoters to identify and resolve key planning issues before applications are submitted."

48. That is precisely the approach that the council adopted in collaboration with the Trust.  Of course, that equally underlines the importance of ensuring that there is sufficient choice of school places available to meet existing needs.  There is no doubt that there is an existing need at present in the borough.  Paragraphs 73 and 74 provide:

"73.  Access to high quality open spaces and opportunities for sport and recreation can make an important contribution to the health and well‑being of communities.  Planning policies should be based on robust and up‑to‑date assessments of the needs for open space, sports and recreation facilities and opportunities for new provision.  The assessments should identify specific needs and quantitative or qualitative deficits or surpluses of open space, sports and recreational facilities in the local area.  Information gained from the assessments should be used to determine what open space, sports and recreational provision is required.

74.  Existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless: 

[i] an assessment has been undertaken which has clearly shown the open space, buildings or land to be surplus to requirements; or. 

[ii] the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location; or. 

[iii] the development is for alternative sports and recreational provision, the needs for which clearly outweigh the loss."

49. The officer's report deals with paragraph 74 in paragraph 7.58‑7.60, and refers to the notification of and response by Sport England in relation to this particular development.  What is said is this in 7.60, having made the point that I have already identified that sports on this area have ceased for some seven years: 

"In regards to paragraph 74 of the NPPF, it is considered that the second test would be met in that the proposal would include the provision of a football pitch and multi‑use games area, which would be secured by condition for use by the wider community outside of the school hours, while the northern part of the site would remain undeveloped and an obligation in the S106 would secure this as open sporting use.  Furthermore, on the basis that the existing use of the site is not currently operating, the requirements of para 74 of the NPPF cannot be rigorously applied."

50. The submission made is that it cannot be said that any of the requirements of 74 are met.  The second one requires that there should be replacement by equivalent or better provision in terms of quantity and quality in a suitable location.  The location is clearly suitable; it is the same location.  So far as the sporting aspect is concerned, clearly there is equivalent both quantitatively and qualitatively.  Indeed, it seems likely that it will be better in terms of both, if one adds in access to the school outside school hours and the new facilities, whether they be for Grasshoppers or anyone else, in the other part of the site.  The only difference is in quantitative terms, is that so far as the open part is concerned some quarter or thereabouts is no longer available.  That is said to mean that there cannot be a proper meeting of the second requirement.

51. That is not the sort of approach that is appropriate for consideration of the NPPF requirements.  It seems to me that it is perfectly proper for the council to have been advised that in the circumstances the fact that there has been no recent ‑ that is to say, over the past six months of that time ‑ use for recreational purposes is a relevant consideration, as is the fact that for seven years it has not even been used for any sporting purposes.

52. A sensible approach must be adopted to these provisions in the NPPF, and to adopt the view that if to the letter a provision is not met means that the development cannot go ahead is to elevate the NPPF to a status which it is not intended to bear.  I have referred to paragraph 13, which makes it plain that it is not regarded as something which falls into that category.  Of course, it must be taken into account.  Any apparent prohibitions within it must be given weight, but if the facts are such in an individual case that mean that it is appropriate to attach less weight to one particular aspect, as is the case here, than that is an approach which is entirely lawful.  I am bound to say that in my view the paragraph 74 point is entirely unarguable.

53. It follows from what I have said that in my view this claim must fail.  The question I now have to consider is whether I should do so having granted permission.  It seems to me that the point was just arguable, and accordingly it is appropriate that I grant permission subject to the usual undertaking to pay the necessary fee.  But as I have said, having granted permission I dismiss this claim. 

 Now, Dove J indicated that in his view, and I think it is clearly right, this is an Aarhus claim. 

MR HARWOOD:  That is correct, my Lord, and ‑‑

MR JUSTICE COLLINS:  For however long Aarhus claims remain. 

MR HARWOOD:  Well that is, of course, a UN convention.

MR JUSTICE COLLINS:  Yes, I know.  It is not ‑‑ so that might survive.  Who knows?

MR HARWOOD:  (Inaudible)  But my Lord, two Aarhus Convention matters.  First of all in terms of costs, we ask for a costs order that the claimant pay the defendant's costs in the sum of £5,000, which is the Aarhus limit.  I understand that is ‑‑  

MR JUSTICE COLLINS:  Yes, I imagine you accept that ‑‑

MS COLQUHOUN:  My Lord, I do.

MR JUSTICE COLLINS:  ‑‑ if you had to pay in full it would be rather more than that?

MR HARWOOD:  My Lord, the second matter is in terms of the time for filing any appellant's notice.  My Lord will be aware of the issues of urgency in dealing with that. 

MR JUSTICE COLLINS:  What is the time?

MR HARWOOD:  As permission has been granted it would be 21 days.

MR JUSTICE COLLINS:  I do not think I can really limit, can I?  Do I have power to limit the time within which ‑‑ I mean, I am bound to say that at the moment, subject to anything Ms Colquhoun may submit, I am not inclined to grant leave to appeal. 

MR HARWOOD:  My Lord, there have been discussions mainly between the claimant and the interested parties.  I understand the agreed position is that it is agreed that were an appellant's notice to be filed then it should be filed and served by 4.00pm on Monday 18 July.

MR JUSTICE COLLINS:  Well, if I have power to do that, I am certainly happy to do so.  I say if I have power, because I am wondering if I can do it or whether it is necessary for the Court of Appeal to do it.

MR TURNEY:  (Inaudible) 

MR JUSTICE COLLINS:  You may well be right.  I have not looked at the White Book.  Sorry, which ‑‑ 

MR TURNEY:  It is Part 52.  If my Lord is in the 2016 White Book it is page 1681.

MR JUSTICE COLLINS:  Yes, we are up to date for once.  Page 1681?

MR TURNEY:  Yes, 1681.  

MR JUSTICE COLLINS:  That is 52.4?

MR TURNEY:  Part 52A.  So the appellant must follow (Inaudible).  

MR JUSTICE COLLINS:  Oh, I can direct a shorter period, yes.  

MR TURNEY:  Such period (Inaudible).

MR JUSTICE COLLINS:  Well, since you appear to have agreed, I am quite happy to direct the period that you have agreed.

MS COLQUHOUN:  My Lord, yes.  Since I am not required to ask anything of you.  I hear what you say about not granting, but I would at least ‑‑ I am not formally applying to you for ‑‑

MR JUSTICE COLLINS:  No, but I think it must follow understandably from the terms of my judgment that this is not a case in which I would have thought it appropriate to grant leave to appeal had I been asked to do so.

MS COLQUHOUN:  My Lord, there two things I would like just to make clear.  We do ask, and I think this was agreed as well, that there is expedition on the transcript, because that clearly that serves both the parties' interests, because ‑‑ 

MR JUSTICE COLLINS:  Make your peace with the shorthand writer about that.

MS COLQUHOUN:  I shall, but of course the reason being that yes, of course, we would like to see it but secondly, the Court of Appeal cannot consider any application without it.

MR JUSTICE COLLINS:  No, okay.  What is the date within which you are supposed to make your application if you want to make one? 

MS COLQUHOUN:  The time that we had ‑‑ normally it would be 21 days.  

MR JUSTICE COLLINS:  I know.  

MS COLQUHOUN:  But the date we agreed was by the 18th of this month.

MR JUSTICE COLLINS:  What are we now?  It is 12 days' time.

MS COLQUHOUN:  My Lord, I am just reminded by my instructing solicitor, that if it could be to file the application because if it is to file and serve, it would be fewer than ‑‑ 

MR JUSTICE COLLINS:  Yes.  Let me just check with the shorthand writer. 

Yes, the shorthand writer tells me that she would be able to do it by the end of next week, which takes us to the 13th.  I have obviously got to approve it.

MS COLQUHOUN:  In the past I have had to wait three months.

MR JUSTICE COLLINS:  No, no, you will have it by the ‑‑ I am not sure what I am doing the week after next, but I am certainly around.  So you will have it by then.  If I get it the end of next week then I can correct it and it will be available early the following week. 

MS COLQUHOUN:  I am very grateful my Lord.  Again, if the order could say filed ‑‑ not served, but filed and served? 

MR JUSTICE COLLINS:  This is on the assumption that you think it is worth trying to appeal? 

MS COLQUHOUN:  Indeed, but just in case my Lord.

MR JUSTICE COLLINS:  I understand, but it can be costly.

MS COLQUHOUN:  Yes.  My Lord, I have no further points to make.

MR JUSTICE COLLINS:  Okay, well thank you for your assistance, all of you.  Obviously the judgment is not quite as polished as it might otherwise have been, but I hope it helped everyone to get it dealt with today.