Challenge to industrial development in AONB

In September 2023, Canterbury City Council’s Planning Committee granted permission for the construction of an industrial and warehousing “winery” development at Highland Court Farm in the Kent Downs Area of Outstanding Natural Beauty (AONB). The proposed development expands the Canterbury Business Park by over six hectares, doubling the size and encroaching into the Highland Court conservation area. In November, a High Court Judge ordered a full hearing of the claim.

The Council’s decision to approve the planning application was subject to contestations by Historic England, Natural England, CPRE Kent and the Kent Downs AONB Unit due to the harm that it will cause to the AONB and heritage assets. This is not the first challenge to the proposed development. Earlier in 2023, Richard Buxton Solicitors sent a pre-action letter on Ms Moakes’ behalf, which led the Council to issue a consent order conceding that they had made a legal error. The planning application was then returned to the Council’s Planning Committee, where it was approved again.

On 20 November 2023, the High Court referred the second claim for a full hearing. The Claimant raises four grounds of challenge, which in summary assert:

Misinterpretation of the Constitution and Procedural Unfairness

In the Council’s Planning Committee meeting on 25 July 2023, the Council denied representatives from Natural England and CPRE Kent the opportunity to speak, except in a personal capacity. As a result, only one organization – the Kent AONB Unit – was able to speak against the application at the meeting. This refusal by the Council to allow Natural England and CPRE Kent to address the Committee was based on an error of law and was procedurally unfair. The Council argued that, according to Section 3 of its Constitution, only one organization and three people were allowed to speak against the application at the meeting. However, Natural England and the Kent AONB Unit are not ‘public speakers’ but statutory bodies, and thus are not subject to the restrictions set out in Section 3 of the Council’s Constitution. Had the Council not made this error, both Natural England and the Kent AONB Unit would have been able to address the Committee, and the organization speaker slot would have remained free for the CPRE Kent to use.

Failure to give reasons for disagreeing with statutory consultees

It is well established that advice given by statutory bodies must be given “great weight” and that “cogent and compelling reasons must be given for departing from it”. See: Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin) , §72. However, the Council has not provided any reasons (“cogent and compelling” or otherwise) for rejecting the advice given by Natural England, the Kent AONB Unit and Historic England. For instance, the Council failed to engage with Historic England’s advice that the proposed development does not meet Sections 197(c) or 206 of the National Planning Policy Framework. Moreover, it failed to adequately consider Natural England’s and the Kent AONB Unit’s warnings that the development would have “significant” and “major” adverse impacts on the AONB, among other concerns.

Failure to address the Medway Appeal

In a similar vein, local planning authorities are required to engage with relevant decisions made by planning inspectors or planning authorities and to give clear reasons for departing from them. The Medway Appeal was such a decision in this case. In the Medway Appeal, a similar planning application for a new winery building within the Kent Downs AONB was denied based on the judgement that the “expansion of the wine industry is not a national priority”. Nevertheless, the Council failed to address the Medway Appeal at all, let alone giving reasons for departing from it.

The Officer Report materially misled the Planning Committee in advising that there was no definition of “exceptional circumstances” and that this was a matter of planning judgement

Paragraph 177 of the National Planning Policy Framework states that major development in an AONB should be refused unless there are “exceptional circumstances” and it is demonstrably “in the public interest”. The advice of the Officer’s Report was materially misleading because it led Committee members to believe that the term “exceptional circumstances” had no objective meaning and could mean whatever they wanted it to mean. However, the term “exceptional circumstances” does have an objective meaning and, when used in this context, has been defined in case law as “unusual” or “rare”. See: R (Mevagissey PC) v Cornwall Council [2013] EWHC 3684 (Admin). The Officer and Committee failed to judge the proposed development against this established standard.

Instructed counsel is Ben Fullbrook of Landmark Chambers.