Davey v Aylesbury Vale District Council and Mentmore Towers Limited

Transcript date:

Friday, March 11, 2005

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Forbes J

Case No: CO/2206/04

 

Neutral Citation Number: [2005] EWHC 359 (Admin)

 

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

 

James Pereira (instructed by Richard Buxton, Solicitors) for the Claimant

 

Mark Lowe QC and Christopher Boyle (instructed by Sally Fleming, Aylesbury Vale D.C.) for the Defendant

 

Timothy Straker QC and Andrew Fraser-Urquhart (instructed by Olswang, Solicitors) for the Interested Party

 

Judgment

As Approved by the Court

 

Mr Justice Forbes:

 

1. Introduction. The Interested Party (“Mentmore”) is the owner of Mentmore Towers, a Grade 1 listed building set within a Grade II historic park totalling 33 hectares in area. Mentmore Towers lies within open countryside and is within the Mentmore Conservation Area. It is clearly the most significant building within the Conservation Area. The Defendant (“the Council”) is the Local Planning Authority for the area in which Mentmore Towers is situated. On 3rd February 2004, the Council granted Mentmore detailed planning permission and listed building approval (“the planning permission”) for the change of use of the existing building from residential to hotel use and for the erection of a 3 storey extension to create a 101-room hotel (“the development”).

 

2. The Claimant is the owner and occupier of the Grade II listed Cheddington Lodge. Cheddington Lodge adjoins the Mentmore Towers estate and abuts an access road to it. In these proceedings for judicial review, the Claimant seeks to quash the foregoing planning permission granted by the Council for the development of Mentmore Towers as a hotel.

 

3. Factual Background. Mentmore Towers was competed in 1856. It was constructed to the design of Sir Joseph Paxton, who also designed the “Crystal Palace” for the 1851 Great Exhibition. The lodge and a number of other associated buildings are also listed in their own right. Mentmore Towers passed through marriage from the Rothschild family to the fifth Earl of Rosebery in 1878.

 

4. The Rosebery family sold off Mentmore Towers in 1977 at which time the contents of the house were sold as well. Part of the estate was also sold and is now in use as a golf-course. The house and the remaining land were purchased by the World Government of the Age of Enlightenment (the Marharishi Foundation) and used for residential educational purposes.

 

5. Faced with significant maintenance responsibilities, the Maharishi Foundation decided to relocate its operation and vacated Mentmore Towers in 1997. It has remained empty since that time. The house has suffered from a long-term lack of maintenance. It is common ground that it is it is fundamental to the house’s restoration and long-term survival that it should be put back into active use.

 

6. The property was actively marketed from 1997 until its current owner purchased it in 1999. However, due to its considerable size, poor condition and high maintenance costs, very little interest was shown in using the building for residential institutional purposes or, for that matter, for any other purpose. Given that this was the case, it was decided that it was necessary to look at alternative uses that would enable the necessary upkeep and maintenance of the building to be achieved. As a result, it was considered that a hotel use was closely aligned to residential use and was one that could generate the income required for renovation, upkeep and maintenance, as well as allowing greater public access to some of the building’s historically important interiors.

 

7. So it was that on 29th November 2001, Mentmore applied for detailed planning permission to convert Mentmore Towers into a luxury hotel. The proposal, as amended, was summarised as follows in the Planning Officer’s report to the Council’s Development Control Committee (“the DC Committee”) for its meeting on 31st January 2002 (the “Officer’s report”).

 

“4.1 The application as amended seeks planning permission and Listed Building Consent for the change of use of Mentmore Towers to a hotel. As well as the change of use of the existing buildings, the proposal also includes:

 

(a) construction of a three-storey building over an underground car park for 140 cars (the Derby Wing), linked to the main house by glazed pergola

 

(b) construction of a detached staff accommodation building (stable block)

 

(c) new access drive link with Wing Road

 

(d) re-modelling of the road junction at the entrance to Cheddington Drive

 

(e) restoration of the gardens, including landscaping and a new management regime.

 

4.2 The applicants submit that the site would operate as a “destination” hotel equivalent to a “six star” rating. The hotel would comprise 101 bedrooms together with a range of facilities some of which will be open to non-residents. The number of rooms, and the type and quality of facilities, are dictated by the specification required to ensure that the scheme will be economically viable.”

 

8. The application was the subject of extended consideration and consultation by the Council. Both English Heritage (the Government’s statutory adviser on the protection of the historic environment) and Mentmore Parish Council (“the Parish Council”) were extensively involved in the consultation process. The Parish Council provided extensive comment in opposition to Mentmore’s proposals throughout. The Claimant is the clerk to the Parish Council, although he brings these proceedings in his personal capacity.

 

9. Enabling Development. Where an application for planning permission is contrary to the development plan, section 54A of the Town and Country Planning Act 1990 (“the 1990 Act”) has the effect that the application should be refused unless material considerations indicate otherwise. One material consideration may be that the grant of planning permission will allow development of a listed building that would not otherwise be permitted but which has the effect of enabling its restoration by the generation of additional profit. This is known as “Enabling Development”.

 

10. In 2001, English Heritage published a policy statement entitled “Enabling Development and the Conservation of Heritage Assets: Policy Statement Practical Guide to Assessment” (“the EH Policy Statement”). The EH Policy Statement contains the following passage:

“English Heritage has become increasingly concerned by the damage caused by developments contrary to established planning policy, put forward primarily as a way of benefiting heritage assets, but which destroy more than they save. Our experience has led us to conclude that there should be a clearly stated presumption against such “enabling development”. Permission should only be granted if the asset is not materially harmed, and the applicant convincingly demonstrates that, on balance, the benefits clearly outweigh any disbenefits, not only to the historic asset or its setting, but to any other relevant planning interests.”

The EH Policy Statement applies to “development contrary to established planning policy”, but not to proposals that are “in accordance with the statutory development plan and national policy”. Enabling development is the minimum development “necessary to secure the future of the heritage asset”.

 

11. Mentmore’s application was accompanied by a supporting statement that (inter alia) referred to and sought to rely upon the EH Policy Statement, as follows:

 

“6.2.2 Enabling development

A key consideration is the necessity of the provision of the new wing. English Heritage have published detailed guidance as to the acceptability of such developments … We enclose a report from Thorburn Associates which assesses the proposals in the light of this guidance.

In particular, the guidance contains a series of tests:

 

The enabling development would not materially detract from the archaeological, architectural, historic, or landscape interest of the asset, or materially harm its setting:

 

The EIA addresses all of these issues in detail. The proposals have been designed specifically such that they do not materially detract in these ways.

 

...

 

The enabling development would secure the long term future of the heritage asset, and where applicable, its continued use for a sympathetic purpose.

 

Thorburn’s specialist report addresses this issue. We would suggest that a hotel use is entirely sympathetic to the original building.

 

...

 

It is demonstrated that the amount of development is the minimum necessary to secure the future of the heritage asset, and that its form minimises disbenefits.

 

Again, Thorburn’s report addresses this specific issue in detail. ...”

 

12. The financial feasibility report prepared by Thorburn Associates (“Thorburns”), dated April 2001, also gives a clear indication of the type of luxury hotel and its likely clientele that was envisaged by Mentmore’s application, as follows:

 

“16. We have not explored either the private house or the country house hotel option any further in our study. … Therefore, we see a luxury hotel as the only viable option. ...

 

...

 

22. The estimated costs of the development and restoration work are summarised later in this report. They amount to about £42M. Additional capital is needed for start-up.

 

23. Projections of income achievable have to be based upon a clear view of the potential market, its size and affluence. Some of the guests will be people who habitually stay in the best hotel they can find and are more concerned about the quality than the cost. Others will be people who are able and willing to pay for the experience of staying there as a celebration, special treat or a change in their lifestyle. Guests may also be attracted by a wedding or other function. There is a special market for people or organisations who are seeking a high degree of privacy and can take over some or all of the place for a few days.

 

24. This is not an exhaustive list of target markets. It simply indicates the variety of potential guests who would not be put off by charges which are higher than for five star hotels elsewhere, provided they think they are getting value for money. This proviso does, of course, put an upper limit on what can be charged and the assumptions in our projections have taken account of the charges at other hotels. This is explained in more detail later.

 

25. Mentmore Towers would be marketed not just as a most excellent hotel, but also as the one place where one can stay in a grand English House. Whilst there are many good hotels in English Country Houses none of them are in a house with the stature of Mentmore except possibly Cliveden. If presented authentically the House could be a great draw in its own right. For this reason the care with which the property is restored and presented is commercially important. It is assumed that this opportunity to feature the special attributes of a grand country house will be grasped by the operator.

 

...

 

46. This kind of hotel is for people who want high quality almost regardless of price, and are able to afford it. If they can be helped to believe that what is offered is truly unique and they are not being ripped off, the price levels will not be a bar to attracting people. It follows that the challenge for the hotel operator is to produce a special mystique about the place, and to charge such prices as will lead people to think that they are getting the best value for money by comparison with other places.

 

...

 

49. Because Mentmore Towers is targeting the wealthier tourist and high spender it will aim to attract a large proportion of overseas tourists. The main generator areas are America, West Germany, France, the richer Arab countries and Japan.

 

50. There is a second group of high spenders to whom promotion will be necessary comprising successful people in the public eye like film stars, television personalities, football players, sports promoters and others who are not left alone if they venture into the public street.

 

51. To this can be added lesser known people with wealth acquired in businesses such as “dot coms”, banking, the media and property development. These are likely to provide the mainstay of the hotel’s trade, being cash rich and time poor, they will appreciate its proximity to London and the quality of it facilities and ambience.”

 

13. In its written consultation response, dated 24th December 2001, sent to the Council’s Area Planning Officer, Mr William Nicholson (“Mr Nicholson”), English Heritage stated that it did not object to the principle of converting Mentmore Towers into a hotel, nor did it object on heritage grounds to the new Derby Wing (the proposed 3-storey extension). It suggested that the Council would wish to satisfy itself that the additional development proposed was the minimum necessary to secure the future of the heritage asset and then stated: “It is for your authority to decide whether the proposal is acceptable in planning terms and whether it accords with local policies”. After suggesting a number of conditions to be attached to the planning permission if the Council was minded to grant it, English Heritage concluded its letter as follows: “Subject to the above matters English Heritage does not object to the granting of consent on this application”.

 

14. On 25th January 2002, the Parish Council wrote a lengthy letter to Mr Nicholson in which it detailed various objections, including the suggestion that the English Heritage “tests” for enabling development had not been met.

 

15. The Officer’s report for the 31st January meeting of the DC Committee recorded the consultation responses from English Heritage (in paragraph 6.1) and the Parish Council (in paragraph 7.2). In the Policy Context section of the Officer’s report, the EH Policy Statement was also identified as one of the relevant policies (in paragraph 8.5). Under the heading “Enabling Development”, the Officer’s report continued as follows:

 

“9.45 The above paragraphs indicated that whilst the change of use of the main house can comply with Development Plan policy, the two new freestanding buildings do not. English Heritage’s practical guide defines enabling development as development that is contrary to established planning policy – national or local – but which is occasionally permitted because it brings public benefits that have been demonstrated clearly to outweigh the harm that would be caused. Any development which accords with established planning policy cannot be classed as enabling development. In this application, although EH do not object to the new buildings from a heritage aspect, these buildings would conflict with countryside policies and have been put forward as the minimum additional development necessary to ensure the long term future of the Grade I LB.

 

9.46 Consultants (i.e. Knight Frank) have been engaged by the Council to consider the issue of enabling development in the light of EH’s advice set out in paragraph 6.1(b) above and guidance in the document noted at paragraph 8.5 above.

 

9.47 Consultants investigated four main elements and have met with Officers to discuss these. The final report and conclusions are expected before the meeting and these will be reported in a corrigendum paper. The four elements were:

(a) Business Case

(b) Historic Buildings issues and costs

(c) Planning and Heritage aspects

(d) Environmental Assessment

 

9.48 The key issues identified are listed below.

 

9.49 A marketing exercise has been carried out concluding that the proposed use of Mentmore Towers as a hotel is the use most likely to be implemented with the least environmental harm.

 

9.50 EH do not consider the scheme in its submitted form to constitute enabling development as they do not consider the proposal compromises the heritage of the building.

 

9.51 The design of the proposals are now generally considered acceptable although there are reservations from EH about the glazed link, the glazed roof and both internal and external lighting.

 

9.52 If the proposal does not constitute enabling development, then it needs to be evaluated against Listed Building advice and Development Plan policy with the refurbishment and re-use of Mentmore Towers being a material consideration to which significant weight must be attached.

 

9.53 If there are no LB, Development Plan or other material planning objections which outweigh the benefit of securing the retention and re-use of Mentmore Towers, then the application should proceed. The decision on weight is for the Local Planning Authority. It is vital however that all material considerations are known and taken into account by Members.

 

9.54 At the moment comments are awaited on the amended plans from PC, particularly on the proposals for traffic calming which have only recently been submitted. …

 

9.55 Knight Frank have identified flaws in the applicant’s submission on three of the four areas investigated:

(a) the Business Case: there appear to be discrepancies on the figures provided relating to the viability of the scheme which raise questions that will need to be resolved. If discrepancies do exist Members need to be made aware of them as this could lead to pressure for additional development to achieve viability: these will be reported in the corrigendum paper.

(b) the Restoration of the Historic Building and costs of new build: these figures cannot be disaggregated and there is no detailed breakdown for the refurbishment work to the LB. The consequence of this is that an assessment cannot be made as to whether the estimate of costs for the refurbishment of the LB will be sufficient or whether any shortfall will need to be compensated by future additional pressure for development.

(c) The Environmental Statement: there are three omissions from the Statement which are not considered to be fundamental to the determination of the application. In addition, some of the applicant’s details regarding transportation are questioned.

 

9.56 A full summary of Knight Frank’s assessment of the proposal under the Enabling Development heading will be reported to the meeting, focussing on the marketing of the building, the business case and the scale of the proposed extensions put forward as necessary to support the development.

 

10.0 CONCLUSION AND RECOMMENDATION

01/00922/APP – the planning application

 

10.1 In terms of the Development Plan, the proposal as a whole conflicts with policies in BCSP and RALP relating to development in the countryside by reason of the size and number of new buildings proposed. However, being a Grade I LB which has not been able to secure a long term future within its permitted use as a residential institution or its original design use as a single family residence, the enabling development provisions apply. The Council’s consultants have indicated that there are no fundamental conflicts with these provisions, which are material to the assessment of the application.

 

10.2 It is considered therefore that whilst the proposed development would be in conflict with BCSP and RALP policies, it should in principle be supported, in light of the lack of a less intrusive, viable use for this nationally important LB. Advertisement as a Departure from the Development Plan would remain necessary.

 

...

 

10.6 Matters to be included as conditions in any planning permission include:

(b) restrictions on helicopters ...”

 

16. Mr Nicholson duly produced a Corrigendum Paper for use at the DC Committee’s meeting of 31st January 2002. This recorded (inter alia) additional representations from the Parish Council and dealt with the final draft report from the Council’s consultants, Knight Frank, in some detail, as follows:

 

“Knight Frank Report

 

3.1 The draft final report from the Council’s consultants was received on 30th January 2002. It is considered that the conclusions are reflected in your Officer’s report, but clarifies the position in relation to the Thorburns report, which is that it does not provide a robust business case for a 101 bedroom hotel. Comparable hotels, in terms of market “exclusivity” are generally much smaller and KF have strong reservations as to how the hotel will be able to maintain this exclusivity with the majority of rooms in a new extension and not within the grand confines of the mansion house. The Thorburns report should be revisited in the light of the changed market circumstances following September 11 2001 and foot and mouth.

 

3.2 KF have considered alternative uses and have concluded that a hotel use is the only use option which is not obtrusive and achieves minimum impact for the heritage asset. Despite the various pieces of missing information from the application, there are some important issues which they believe the Council should not lose sight of:

 

(a) Mentmore Towers was marketed for a period of two years at a time when the property market was considered to be in a reasonable state of health. The property was offered for a variety of potential uses but following significant exposure to the market, Mentmore Towers Limited and the current hotel proposal was the only viable offer received. KF are satisfied that the market testing exercise was as thorough as could reasonably be expected.

 

(b) EH have raised no objection to the extension (with the exception of a few minor design issues) and do not believe it is enabling development on heritage grounds.

 

(c) A beneficial use needs to be identified for Mentmore Towers to secure the future preservation of an important heritage asset.

 

3.3 KF are aware that they have identified areas where the information provided by the applicant falls short of the Council’s requirements to comfortably make a decision in relation to the application if treated as an enabling development case. Some of this information is not so much a requirement of the decision making process but more to ensure that obligations are imposed to adopt measures to preserve the heritage asset. Many of these items could be included within a S106 POA.

 

3.4 KF also advise that in view of the identified weaknesses in the Thorburns business case for the application, the Council should be aware that at some stage in the future the applicants may be forced into a position to revise their application. ...”

 

17. At the DC Committee’s meeting of 31st January 2002, Mr Nicholson made an oral presentation in which he explained the Knight Frank final draft report and various documents from Frank Knight were also made available for inspection by members (for details, see paragraph 36 below). In the event, the Committee deferred the application for a site visit and for the advertisement of a Departure from the Development Plan.

 

18. A site visit took place on 4th February 2002. A further Officer’s report to the DC Committee was prepared which included details of the final Knight Frank report and Mentmore’s response to it. A second DC Committee meeting took place on 21st February 2002, at which Mr Nicholson made a further oral presentation explaining the Knight Frank final report. The DC Committee again decided to defer the application to enable updated business plans to be prepared.

 

19. A yet further Officer’s report to the DC Committee was prepared which dealt with amended plans and recommended that, if members wished to grant permission, authority should be given for the application to be dealt with by the Head of Planning. A report of Additional Information recorded the Parish Council’s position in fundamentally objecting to the proposals as not representing the minimum development necessary to protect the future of Mentmore Towers.

 

20. A DC Committee meeting on 2nd May 2002 recorded members as “minded to support” the application although, in the event, the application was again deferred for various negotiations to take place. In due course, the negotiations were the subject of a further Officer’s report to the DC Committee.

 

21. At its meeting on 14th November 2002, the DC Committee resolved that the Head of Planning be authorised to determine the application with any permission being “subject to such conditions as the Head of Planning or Development Control Manager considers appropriate”.

 

22. As already indicated, planning permission for the development was granted by Notice dated 3rd February 2004.

 

23. The Grounds of Challenge. On behalf of the Claimant, Mr Pereira relied on each of the following three grounds in support of his submission that the planning permission in question should be quashed: (1) the Council’s approach to the issue of enabling development was flawed (“the Enabling Development Issue”), (2) the applicant’s failure to submit a Green Travel Plan (“the Traffic Issue”) and (3) the failure of the Head of Planning to impose a suitable condition restricting helicopter flights to and from the hotel (“the Helicopter Issue”). Mr Pereira made it clear that original Grounds 4 and 5 (see paragraphs 49 to 61 of the Claimant’s original grounds) were no longer pursued. I therefore now turn to deal with each of the three effective grounds in turn.

 

24. Ground 1: The Enabling Development Issue. Stated shortly, it is the Claimant’s case that the members of the DC Committee (“the members”) were not advised correctly by their planning officers of the requirements of the EH Policy Statement and that, as a result, the Council misapplied its policy guidance and/or adopted an incorrect and flawed approach to it. In effect, Mr Pereira’s starting point was to draw attention to the conclusion expressed in paragraph 10.1 of the Officer’s report, namely that “the enabling development provisions apply. The Council’s consultants have indicated that there are no fundamental conflicts with these provisions, which are material to the assessment of the application”.

 

25. It was Mr Pereira’s submission that the officers were correct to conclude that the guidance contained in the EH Policy Statement applied to Mentmore’s application. He then submitted that the EH Policy Statement contains a general presumption against enabling development and that permission for such development should only be granted where the applicant has convincingly demonstrated that the benefits clearly outweigh any disbenefits. Mr Pereira suggested that, for the purposes of this case, the key provisions of the EH Policy Statement can be summarised as follows:

 

(i) the enabling development must secure the long term future of the heritage asset – there is a danger of the need for further development to make good any deficit;

 

(ii) full information is necessary in order to make an informed decision, including as to the financial considerations which are fundamental, which clearly demonstrates need – information must be supplied to cover all financial aspects of the proposal, at a sufficient degree of detail to enable scrutiny and validation; and

 

(iii) the information must be subject to rigorous testing by the Council and critical assessment by appropriately-qualified professionals.

 

26. Mr Pereira submitted that the essential thrust of the conclusions reached by the Council’s consultants, Knight Frank, had been to the effect that fundamental elements of Thorburn’s report were unsubstantiated and flawed, that the report had been superseded by revised plans and that there was a strong case that the report should be updated. Mr Pereira pointed out that, at page 41 of their report, Knight Frank had expressed the following view:

“It is clear that a considerable amount of potentially significant information is missing. In particular the lack of specific information with regards to the cost of restoring the listed building means that it is impossible to undertake a conventional enabling development assessment.”

 

27. Mr Pereira submitted that there is an obligation upon officers to produce fair, accurate and objective reports and that citizens are entitled to expect objectivity in such reports: see R ~v~ Camden LBC, ex parte Cran (1996) 94 LGR 8. Mr Pereira suggested that neither the EH Policy Statement nor the Knight Frank report had actually been put before the members in this case and he submitted that the Knight Frank report had not been fairly reported in either the Officer’s report or in the Corrigenda to it.

 

28. It was Mr Pereira’s submission that the essential flaws in the Council’s decision-making on this aspect of the matter could be summarised as follows:

 

(i) the Officer’s report did not properly advise members that the EH Policy Statement contained a presumption against enabling development, nor of the requirements of the EH Policy Statement, nor that the application failed so substantially to provide the information required by the EH Policy Statement;

 

(ii) the Officer’s report wrongly advised members that the Knight Frank report had advised that the application was not “fundamentally” contrary to the EH Policy Statement, when this was not the basis of the Knight Frank report and when, in fact, the application was clearly in fundamental conflict with the EH Policy Statement;

 

(iii) the Council reached its decision when information required for the decision-making process was not before it, or even available; and

 

(iv) the reliance on the unjustified conclusions of the Knight Frank report was irrational.

 

29. Accordingly, Mr Pereira submitted that the Council’s decision making was irrational and flawed because it had failed to have regard to relevant considerations and had taken into account irrelevant matters. It was Mr Pereira’s further submission that if the Council had had proper regard to the EH Policy Statement and/or to Knight Frank’s analysis of Thorburns’ report, it might well have concluded that there was nothing that could overcome the presumption against enabling development and the applications would have been refused.

 

30. I am satisfied that, as indicated in the Officer’s report, the EH Policy Statement was a material consideration under sections 54A and 70 of the 1990 Act for the Council to take into account when considering the applications in this case. Neither Mr Lowe QC for the Council nor Mr Straker QC for Mentmore sought to argue otherwise. However, as Mr Lowe and Mr Straker both stressed, it is important to bear in mind that the guidance contained in the EH Policy Statement is not mandatory. It is purely extra-statutory guidance, it is not part of the development plan and stands instead as a material consideration.

 

31. As Mr Lowe and Mr Straker both submitted, it is for the local planning authority as decision maker to give such weight to a material consideration, such as the EH Policy Statement, as it considers appropriate; it is a question of planning judgment for the local planning authority (in this case, the Council) and can only be impeached on public law grounds (e.g. irrationality): see the speech of Lord Hoffmann in Tesco Stores Ltd ~v~ The Secretary of State for the Environment [1995] 2 All ER 636, where he said this at 657f – 657j:

 

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

 

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

 

32. As Mr Lowe and Mr Straker pointed out, the Knight Frank report noted that English Heritage had suggested that the case could not be regarded as enabling development, because the Derby Wing did not do any harm to the heritage asset (what Mr Lowe characterised as enabling development “in the narrow sense”): see English Heritage’s letter of 24th December 2001. In its letter of 24th December, English Heritage had also gone on to indicate expressly that it was a matter of local policy and local decision-making and that it did not object to the grant of planning permission (subject to the imposition of suitable conditions).

 

33. Notwithstanding English Heritage’s “narrow” interpretation of enabling development, the Officer’s report adopted the “wider” interpretation of the policy (again, as characterised by Mr Lowe) and advised Members that the enabling development provisions did apply (see paragraph 10.1), before going on to summarise Knight Frank’s report as indicating that “there are no fundamental conflicts with these provisions, which are material to the assessment of the application.”

 

34. The main thrust of Knight Frank’s advice with regard to enabling development is to be found in section 5 of the report to the Council and is in the following terms (inter alia):

 

“One of the first decisions for the Council as planning authority is whether to treat this application in the context of enabling development or not. We do not believe that there is a firm conclusion that can be drawn on this. Clearly the new development is part of the process that enables the restoration of the heritage asset but as we have said it is English Heritage’s view that it has been designed in such a discreet way as to not require enabling development tests to apply. Effectively what English Heritage are saying is that they believe the scheme can be judged on policy grounds alone. We do believe, however, that a case could be made for this being treated as enabling development and the fact that English Heritage have expressed an informal view that it need not does not, in our view, constitute conclusive proof of the fact.

 

...

 

The Enabling Development Approach

We have explained the process of the enabling development equation. The value created by the new development should be equivalent to the cost of restoring the heritage asset. The circumstances here are, however, perhaps slightly different to the normal simple equation.

The developers have not provided a breakdown of the restoration costs which would enable a conventional assessment to be made. Clearly the Council could commission its own detailed assessment of restoration costs (this would no doubt involve considerable expenditure) or alternatively it could revert to the applicant insisting that this information be provided. In this instance, however, we would debate whether in fact it is necessary.

 

Our conclusion is that the hotel project is not so obviously viable that there is at this stage likely to be substantial value generated by the extension. Similarly, we do not believe that it is necessarily the case that the amount of value increases as the size of the extension increases. There is, we believe, a critical point at which the project is most likely to be viable and we believe that somewhere around 100 rooms is probably the optimum point. On that basis therefore the assessment of the minimum scale of development needed is not so relevant. It is worth repeating one point that we made earlier. The applicants are seeking to create a particularly exclusive hotel. Clivedon is probably what they are aspiring to. Clivedon is very much smaller in scale and it is this small size that helps to achieve the exclusivity. We believe, however, that it is unlikely that an excusive hotel with a small number of bedrooms could be made to work in this case where the conversion and restoration costs are likely to be so high. On the other hand we believe that much more than, say, 100 bedrooms would completely destroy the exclusivity of the venture. If the project is therefore to achieve commercial viability it will probably be at the scale proposed and the conventional enabling development assessment is largely irrelevant.”

 

35. I accept Mr Lowe’s submission that the advice from Knight Frank contained in the passage quoted in the previous paragraph was sensible, clear and pragmatic. I also agree with his argument that, on a fair reading of the Knight Frank report as a whole, no fundamental conflicts with the EH Policy Statement were identified that were material, in the sense that resolution of those conflicts were considered by Knight Frank or the Officers to be necessary to determine the application. In my view, the Officer’s report summary of the Knight Frank report to that effect and generally was both fair and accurate. As Mr Lowe observed, in effect Knight Frank’s advice was that the scale of the proposed development was about right and that, in all the circumstances, no benefit was to be gained by “going through all the further hoops” (to use Mr Lowe’s expression) that were theoretically required by the EH Policy Statement guidance. In my opinion, that was advice that the Council was entitled to accept and act upon.

 

36. Accordingly, in my view, Mr Pereira’s various criticisms of the way in which Members were informed as to the advice and contents of the Knight Frank report are not justified. I am satisfied that the Officer’s reports and corrigenda did summarise for Members the Knight Frank report and its advice fairly, accurately and objectively. I am also fortified in that conclusion by the contents of paragraphs 6 to 8 of Mr Nicholson’s witness statement dated 22nd October 2004, in which he described how the matter was dealt with, as follows:

 

“6. K(night)F(rank) were appointed on 25th October and their report was provided in three stages. The first stage consisted of three separate fact finding assessments covering the Environmental Impact Assessment, the financial feasibility study and town planning issues. These assessments were discussed at a meeting between KF, me and Mr Cannell (the Council’s Development Control Manager) at a meeting on 4th January 2002. A short summary of these assessments was included in the officer’s main report to D(evelopment)C(ontrol)C(ommittee) on 31st January 2002. In accordance with our normal practice, these documents were made available for Members of DCC from 12.00 noon on 31 January 2002. The planning application files and associated documents are taken to the Council Chamber so that they are available for inspection by Members and a Planning Officer is in attendance during that time to guide Members to documents they wish to inspect and to answer any question thereon.

 

7. The next document received from KF was the final draft report. This document, dated 25th January 2002, was received by the Council on 30th January 2002. It was summarised in a supplementary (Addendum and Corrigendum Papers) report to the meeting the next day. It was also made available to Members from 12.00 noon on 31st January 2002. In recognition of the length of this item and the short time available for the Councillors to read it, I ran through its contents orally as part of my presentation of the application to the DCC. … I believe that as a consequence Members had a fair and comprehensive summary of the draft final KF report before them.

 

...

 

8. The third and final report was received from KF on 13th February 2002. This was too late for inclusion in the main report to DCC on 21st February 2002. On about 19th February, I prepared an Addendum and Corrigendum Papers report containing a summary of the KF findings and the applicant’s comments on it. At the meeting on 21st February I again ran through the main headline points of the report for the assistance of the members. … The final KF report was made available for members’ inspection at 12.00 noon on 21st February 2002. At the meeting the local County Councillor was recorded as saying that she had read the KF report. There was no material difference between the final draft and the final report in terms of content. ...”

 

37. In my judgment, the approach adopted by the Council to the question of enabling development was entirely rational having regard to the advice it had received from the various professional experts, in particular its own consultants, Knight Frank. I accept the submission made by both Mr Lowe and Mr Straker that it is not surprising that the Officer’s report does not condescend to details of the guidance contained in the EH Policy Statement in the light of the advice given by Knight Frank and the views expressed by the author of the policy in question, English Heritage. In any event, as Mr Lowe observed, further explanation of the EH Policy Statement would have made no difference to the conclusion in principle as to its applicability to the circumstances of this case, given the views expressed by Knight Frank.

 

38. I have therefore come to the conclusion that the Council’s approach on this aspect of the matter is unimpeachable as a matter of public law. These were complex issues involving a number of difficult judgments that were for the Council to make as the local planning authority. There is no basis for concluding that the Council’s decision-making on this aspect of the matter was flawed as a result of having failed to take into account relevant considerations or having taken into account irrelevant matters. I reject Mr Pereira’s submissions to the contrary effect. Accordingly, for those reasons, the first ground of challenge fails.

 

39. Ground 2: The Traffic Issue. Mr Pereira submitted that, although the Parish Council had specifically raised the need for a travel plan with the Council, Mentmore was not required (in the event) to submit a travel plan in connection with the proposals, contrary to Central Government’s Planning Policy Guidance 13: Transport (“PPG 13”). In fact, Mentmore has now made provision for a Green Travel Plan by means of a Unilateral Undertaking made under section 106 of the 1990 Act (as to which, see below). Accordingly, for reasons given later in this judgment, I accept the submission made by both Mr Lowe and Mr Straker that this ground of challenge (like ground 3, see below) is now entirely academic. It is, however, necessary to consider first whether there was any merit in the original challenge itself.

 

40. It is common ground that the development is one that crosses the threshold for the application of PPG 13. As Mr Nicholson conceded in paragraph 15 of his witness statement, PPG 13 sets a threshold of 1000 square metres on leisure developments (accepted as exceeded in the present case), above which a travel plan should be sought. Paragraphs 87 to 89 of PPG 13 provide as follows:

 

“Travel Plans

 

87. The Government wants to help raise awareness of the impacts of travel decisions and promote the widespread use of travel plans amongst businesses, schools, hospitals and other organisations. Local authorities are expected to consider setting local targets for the adoption of travel plans by local businesses and other organisations and to set an example by adopting their own plans.

 

88. There is no standard format or content for travel plans, and they may have a variety of names (such as green transport plans, company travel plans and school travel plans). However, their relevance to planning lies in the delivery of sustainable transport objectives, including:

 

1. reductions in car usage (particularly single occupancy journeys) and increased use of public transport, walking and cycling;

 

2. reduced traffic speeds and improved road safety and personal security particularly for pedestrians and cyclists; and

 

3. more environmentally friendly delivery and freight movements, including home delivery services.

 

89. The Government considers that travel plans should be submitted alongside planning applications which are likely to have significant transport implications, including those for:

 

1. all major developments comprising jobs, shopping, leisure and services …”

 

41. In paragraphs 16 to 18 of his witness statement, Mr Nicholson described how the question of a travel plan for the development was dealt with by the officers and the DC Committee, as follows:

 

“16. The planning application for Mentmore Towers was accompanied by a Transport Impact Assessment (TIA) incorporated into the main Environmental Impact Assessment … The TIA recognised that traffic levels on the local road network would increase once the application had been implemented. The TIA amongst its other recommendations put forward some suggestions to ensure that the hotel use is “as sustainable as possible in terms of transport”. These included the provision of a minibus to pick up and drop off staff working at the hotel who lived in the surrounding towns and villages. Also, a similar service was proposed to run to Cheddington Station to meet hotel guests arriving by train. I consider that these are essentially proposals that could be expected from a travel plan although not explicitly described as such as they seek to show how the applicants intend to reduce car journeys to and from the proposed hotel. I am not aware of any other matter that could have been included in a travel plan had the Defendant desired one at the time.

 

17. The Defendant’s normal practice in assessing transport matters is to seek the advice of the County Council as Highway Authority. This advice was provided in the form of a letter to the Defendant from the Director of Environmental Services at Buckinghamshire County Council and dated 6th June 2001. … He considered that the likelihood of 15 – 25% of guests arriving at the hotel by train at Cheddington Station to be unrealistic, as is the practicality of a staff minibus service being able to significantly reduce staff car movements. … At no point subsequently in the consideration of the application did the Director of Environmental Services change his advice in respect of travel plans and sustainability issues. Whilst I accept that the report does not specifically state that a travel plan should not be pursued in this case, it is implicit … that this is the view being recommended to the DCC. Looking further in the report to the conclusion and recommendation, the requirement for a travel plan is not included in paragraph 10.7.

 

18. Little discussion took place on the subject of travel plans at the four DCC meetings at which the application was considered. …I conclude that DCC members accepted the implicit advice contained in the January report that the submitted travel plan proposals contained in the applicant’s TIA should not be pursued.”

 

42. Mr Lowe submitted (correctly, in my view) that it is apparent from the Officer’s report (for the 31st January 2002 DC Committee meeting) that members were clearly advised as to the likely traffic generation of the proposals before mitigation (if any) and of the views of the Highway Authority that this was not considered to be a problem for the local road network (see paragraph 9.29 of the Officer’s report). I also accept Mr Lowe’s submission that, in paragraph 9.30 of the Officer’s report, members were cautioned against accepting the conclusions of Mentmore’s Traffic Impact Assessment, because of its identified unrealistic assumptions. Paragraph 9.30 of the Officer’s report then continued as follows:

 

“However, DES (the Highway Authority) considers that it is difficult to establish whether the new vehicle trips generated and attracted to a hotel in this location would result in an overall increase or decrease in mileage on the road network when compared to a scenario where the same hotel was located in a town. On this basis, it is considered that it would be difficult to argue that the proposal would result in a material conflict with advice and guidance set out in PPG 13 particularly when weighed against the possible benefits of the development from the Historic Buildings aspect.”

 

43. After dealing with other aspects of traffic and transportation issues, this section of the Officer’s report then concluded as follows:

 

“9.34 It is considered that although some of the applicant’s traffic figures may be open to question, that the overall traffic impact of the development, both locally and further afield, is capable of mitigation. However, this matter must be subject to the receipt of DES’ views on the amended plans and these will be reported verbally to the meeting. ...”

 

44. Mr Pereira submitted that the Highway Authority’s letter of 6th June 2001 did not contain any advice at all on the question of whether a green travel plan should be required or not. Mr Pereira suggested that the Highway Authority’s letter commented on certain matters that had been put forward by Mentmore as part of its Traffic Impact Assessment, matters that had not been advanced as proposals for or as part of a green travel plan.

 

45. It was Mr Pereira’s submission that the Council’s officers appeared to have assumed that the Highway Authority’s letter constituted advice to the effect that no travel plan was required in this case, although there was no evidence that the Highway Authority had turned its mind to what requirements might reasonably be included in a travel plan. Mr Pereira pointed out that, in paragraphs 17 and 18 of his witness statement, Mr Nicholson had accepted that members understood the Officer’s report as implicitly advising against any green travel plan and that this was why the DC Committee did not require one.

 

46. It was therefore Mr Pereira’s submission that the DC Committee’s decision-making on this aspect of the matter was flawed because: (i) the DC Committee’s decision was based on a misunderstanding that advice had been received from the Highway Authority to the effect that a green travel plan was not required; (ii) as a result, members did not consider what proposals should reasonably be included in such a plan; (iii) members erred in accepting the officer’s advice that “it would be difficult to argue that the proposal would result in a material conflict with advice and guidance set out in PPG 13 …”; and (iv) if members did decide not to require a travel plan, having considered the matter, they failed to give any legally adequate reasons for departing from the guidance given in PPG 13.

 

47. I am not persuaded that there is any real substance in Mr Pereira’s submissions in support of this ground of challenge. As Mr Lowe submitted, PPG 13 was a material consideration for the Council to take into account and give such weight as it considered appropriate. I agree with his further submission that the essential issue for the Council to decide on this aspect of the matter was whether it was justified to require Mentmore to provide a travel plan as part of an agreement under Section 106 of the 1990 Act. Stated shortly, was it necessary (see Circular 1/97 paragraph 7(i)) in the circumstances of this case to require such a travel plan?

 

48. Mr Lowe submitted that the Council clearly did consider this issue because sustainable travel matters were specifically raised in Mentmore’s Traffic Impact Assessment. Those matters were then considered by the Highway Authority in the normal way and were the subject of the Highway Authority’s comments and advice. As Mr Straker pointed out, the Officer’s report proceeded “faithfully” to record the consultation responses from the Highway Authority (and from the Parish Council) on this aspect of the matter. I reject Mr Pereira’s submission that the DC Committee’s decision was based on a misunderstanding of the advice given by the Highway Authority.

 

49. I agree with the submission made by both Mr Lowe and Mr Straker that the substance of the issue was clearly considered by the Highway Authority, although the label “green travel plan” was not actually used. The Highway Authority obviously saw little or no benefit being obtained from the sort of proposals put forward by Mentmore, but had no other proposals of its own. I agree with Mr Straker’s submission that, in the circumstances of this case, the Officer’s report was entitled to treat as decisive the fact that (in the view of the Highway Authority) it made no appreciable difference in sustainability terms whether this sort of exclusive hotel was located in the location proposed or in a town. I agree that this entitled the officers properly to conclude and advise members in the Officer’s report (as they did) that there would be no material conflict with PPG 13. I also agree that this was advice that members were entitled to accept (as they plainly did).

 

50. Accordingly, for those reasons I am satisfied that, on analysis, there is nothing of substance in this particular ground of challenge, which also fails accordingly.

 

51. However, as already indicated, even if (contrary to my primary finding) this ground of challenge has been made out, I am satisfied that it is entirely academic because, having regard to all the circumstances of the case, it is one in which it would be appropriate for me to exercise my discretion in favour of refusing to grant the relief sought. I now turn to give my reasons for coming to that conclusion.

 

52. On 1st December 2004, Mentmore executed under seal a Unilateral Undertaking to the Council (“the Undertaking”) under section 106 of the 1990 Act, the material terms of which are as follows:

 

“(3) The Council resolved at a meeting of its Development Control Committee on 14th November 2002 to delegate authority to determine the Planning Application to the Head of Planning/Development Control Manager following completion of agreements under Section 106 of the 1990 Act with both the District Council and Buckinghamshire County Council (County Council) for the purpose of making acceptable arrangements in conjunction with the carrying out of the Development pursuant to the Planning Permission and subject also to the concurrence of the First Secretary of State of the Office of the Deputy Prime Minister.

 

(4) In making its resolution, the District Council considered whether to prohibit the landing of helicopters on the Application Site and whether a Green Travel Plan should be required of the Owner, and decided that neither were necessary.

 

(5) Whilst the District Council does not require the Owner to enter into a Green Travel Plan, the Owner has offered to enter into the same in accordance with the terms set out in this Undertaking.

 

(6) It is not the Owner’s intention to permit the landing of helicopters at the Application Site, and accordingly the Owner has offered to undertake to prohibit the landing of helicopters at the Application Site as set out in this Undertaking.

 

NOW THIS DEED WITNESS the following:-

 

1. INTERPRETATION

 

...

 

Green Travel Plan shall mean a travel plan containing (but not limited to) considerations of at least those requirements contained in Schedule 2 hereto to be approved by the District Council after consultation with the County Council;

 

...

 

2. LEGAL EFFECT

 

2.1 The Owner acknowledges that the obligations in clause 3 of this Undertaking are planning obligations and are enforceable by the District Council in accordance with the provisions of section 106(3) of the 1990 Act against the Owner and its successors in title and persons deriving title under them and shall bind the interests held by those persons in the Application Site.

 

...

 

2.3 This Undertaking is a Local Land Charge and shall be registered as such.

 

...

 

3. OWNER’S OBLIGATIONS

The Owner undertakes as follows:

 

3.1 To prohibit the landing or taking off of helicopters within the Application Site.

 

3.2 Within 14 days of implementation of the Development to submit to the District Council a draft Green Travel Plan for approval by the District Council after consultation with the County Council.

 

3.3 To carry out the obligations in the approved Green Travel Plan in accordance with the timings and targets set out in the Green Travel Plan.”

 

53. Mr Pereira referred to Simplex ~v~ Secretary of State for the Environment and St Albans DC [1988] 57 P & CR 306 and Berkeley ~v~ Secretary of State for the Environment and another [2001] 2 AC 603 and submitted that in cases, such as the present, the exercise of discretion by the Court should be tightly circumscribed, particularly in circumstances where the section 106 agreement is or may be effecting an evasion of the Environmental Impact Assessment (“EIA”) procedure. He submitted uncontroversially that for the Court to exercise its discretion in a way that resulted in such evasion would conflict with the Court’s duty under Article 10 of the Treaty of Rome to ensure fulfilment of the United Kingdom’s obligations under the Treaty: see the speech of Lord Hoffmann in Berkeley at page 616.

 

54. Mr Pereira’s submission that the section 106 agreement in this case (i.e. the Undertaking) is or may be effecting an evasion of the EIA procedure was essentially based on the proposition that, on proper analysis, the Undertaking “had no teeth” and was, to all intents, wholly ineffectual in any meaningful sense. So far as concerns the issue of a travel plan, Mr Pereira suggested that Mentmore’s only obligation under the Undertaking was to submit a green travel plan for approval, that there was nothing in clause 3.2 of the Undertaking that guaranteed that the submitted travel plan would be satisfactory or implemented and that the Council had no bargaining power that would enable it to obtain one. Mr Pereira suggested that the Council would have no reason for monitoring the obligation in any event and that there was no means of knowing whether the green travel plan would have been the same if the proper process had been followed through. For all those reasons, Mr Pereira submitted that if the substantive ground of challenge was made out, Mentmore should not be “let off the hook” (to use Mr Pereira’s expression) by a unilateral obligation such as this, produced at the last minute.

 

55. Again, in relation to this particular ground of challenge, I am satisfied that there is no substance in Mr Pereira’s various criticisms of the Undertaking in this case. As Mr Lowe pointed out, the Undertaking’s definition of “Green Travel Plan” ensures that there is an irreducible minimum for any such plan (i.e. at least, the requirements of Schedule 2) and, in the unlikely event that Mentmore proved to be obstructive, the Council could approve a plan with that minimum content. I also agree with Mr Lowe that the content of Schedule 2 to the Undertaking appears comprehensive and more so than was contemplated in either the TIA or by the various parties in 2002. As for the suggestion that the Council would not monitor Mentmore’s obligations, I agree with Mr Lowe that it should be assumed that the Council will act in good faith and in the proper discharge of its duties. There is certainly nothing in the facts and circumstances of this case to suggest that a different approach is either necessary or appropriate. Furthermore, as Mr Straker pointed out, Mentmore’s obligations under clause 3.3 of the Undertaking could be enforced by mandatory injunction if necessary.

 

56. Accordingly if, contrary to my primary finding, this second ground of challenge has been made out, I am satisfied that the circumstances of this case are such that it would be appropriate to exercise my discretion in favour of refusing relief. For all the foregoing reasons, therefore, I am satisfied that this second ground of challenge either fails or is not one in respect of which it is appropriate to grant any relief.

 

57. Ground 3: The Helicopter Issue. This ground of challenge is based on the failure of the Head of Planning to impose a suitable condition restricting the use of helicopters. However, as already indicated, Mentmore has now entered into a unilateral obligation to prohibit helicopters from landing or taking off within the Application site: see clause 3.1 of the Unilateral Undertaking, quoted in paragraph 51 above. As a result and as in the case of the second ground of challenge, I agree with the submission made by both Mr Lowe and Mr Straker that the third ground of challenge is therefore now entirely academic. However, it is still necessary to consider merits of this particular ground.

 

58. Mr Pereira emphasised that the proposal in this case was for a luxury hotel of exceptional quality and prestige. He suggested that the proposed hotel and its likely clientele made a significant amount of helicopter traffic to and from the hotel inevitable, that such traffic would be reasonably ancillary to this type of luxury hotel use and that, in any event, there was ample scope for a significant incidence of lawful helicopter flights by making use of the 28 days per annum permitted development rights on land outside the curtilage of the hotel building itself (“the permitted development rights”).

 

59. It is common ground that the planning permission was not subject to any condition restricting the use of helicopters. In paragraphs 11 to 14 of his witness statement, Mr Nicholson explained how this came about, as follows:

 

“11. The applicant (Mentmore) has never suggested that the proposal includes the use of any part of the site for the landing of helicopters. If this had been the case then it would have formed part of the Environmental Impact Assessment. The issue of helicopter use was first raised by Mentmore Parish Council as summarised in paragraph 7.2 (f) of the 31st January 2002 DCC report: “PC question whether helicopter landing/take off is proposed on site”. They followed this in their comments on the amended plans with a further request that any Section 106 agreement should include a clause stating that there should be no helicopter landings in the grounds. The officer’s evaluation in the same report refers at paragraph 9.37 to considering appropriate conditions on the possible use of the land for helicopters. This is again suggested in the conclusion section in paragraph 10.6(b). The recommendation to the meeting on 31st January 2002 was to defer the application subject to a number of matters with all conditions delegated to the Head of Planning Services.

 

12. Notes taken by officers at both meetings of DCC on 31st January and 21st February 2002 … do not record any member of the Committee raising the issue of helicopters either in the form of questions for officers or in the debate. The notes of the 2nd May 2002 meeting … record Councillor Mrs Davies setting out what she considered were the main matters to be the subject of conditions and these did not, specifically or otherwise, mention helicopters. At the 14th November 2002 meeting the Parish Council are recorded … as having again requested that helicopter landings in the grounds be prevented through the Section 106 agreement or planning conditions. The notes of the meeting record that the applicant’s agent, Mr Nick Sharpe, on being questioned advising the Committee orally that no helicopter landings were proposed. Councillor Mrs Lambert asked whether a “no landings” condition was reasonable to which no answer was recorded. The notes of the meeting also record that the Chairman of the Committee asked the applicant’s Planning Consultant whether helicopter landings could be controlled by a clause in the section 106 agreement to which the Planning Consultant is recorded as stating that he would need to consult, presumably his client.

 

13. I recall that throughout the period that the application was under consideration until March 2003 the use of some form of planning condition restricting the use of helicopters was envisaged by me. This is shown in evidence by draft condition 15 on the draft decision notice dated 28th February 2003. However, for reasons set out below this course of action was not pursued.

 

14. On 24th March 2003 a letter was received from a local resident who happens to be Queen’s Counsel and a senior member of the Planning Bar drawing attention to the proposed draft condition permitting helicopters at certain times (condition 15) and the fact that helicopters had not been included as a use within the Environmental Impact Assessment. The presence of the condition, restricting helicopter use at certain times would then effectively permit helicopter use of the land at other times. I then reconsidered the matter in discussion with Jim Cannell, Development Control Manager and Sally Fleming, Senior Solicitor, and we concluded as follows:

 

• A condition preventing helicopter use could not be justified under the advice given in Circular 11/95 in that:-

 

(1) Landing helicopters is not ordinarily incidental to a hotel use and so it is an activity which would require either express permission, or the exercise of permitted development rights.

 

(2) The applicant did not propose or seek permission for the landing of helicopters and therefore a condition was not necessary.

 

(3) The only feasible landing site within the control of the applicant was on the open land to the immediate east of the main entrance into the building. This is part of the building’s curtilage and as such has no permitted development rights to land helicopters.

 

(4) Any land that could be argued to be beyond the curtilage but still within the control of the applicant is unsuitable for landing helicopters due to tree cover or topography.

 

(5) Land beyond the curtilage and suitable to land helicopters (i.e. the golf course) is not under the control of the applicant and a condition would have had not effect.

 

For these reasons the Council’s officers exercised their delegated authority not to impose a condition restricting or preventing the use of helicopters on the site.”

 

60. It was Mr Pereira’s submission that, in the light of the Claimant’s evidence (see paragraphs 12 to 19 of his witness statement), there is (at least arguably) land outside the curtilage of the building upon which a helicopter could both land and take off and which could be used for exercising permitted development rights at or near the hotel. Mr Pereira also submitted that, having regard to the very exclusive nature of the proposed hotel and its likely clientele, there was also a strongly arguable case for saying that helicopter flights would be ancillary to such a hotel use: see Harrods Limited ~v~ Secretary of State for the Environment Transport and the Regions [2002] JPL 1258. Having regard to these factors, Mr Pereira submitted that, notwithstanding the views expressed by Mr Nicholson to the contrary, there was a genuine and live issue as to the potential for a significant incidence of lawful helicopter flights to and from the hotel, thus necessitating the imposition of a helicopter condition.

 

61. Mr Pereira therefore put forward the following general propositions in support of this ground of challenge:

 

(i) the factual circumstances clearly demonstrate that the Council and its officers correctly recognised that the proposed development would and could attract a significant incidence of lawful helicopter flights either to the hotel site itself or to the nearby golf course;

 

(ii) the officers and the DC Committee also recognised that any helicopter flights to and from the hotel should be controlled by suitable planning conditions, if possible;

 

(iii) the advice to members by the Council’s Head of Planning consistently was that a condition restricting helicopter movements (“helicopter condition”) should be included in any planning permission granted for the development (see, for example, paragraph 10.6(b) of the Officer’s report quoted in paragraph 15 above);

 

(iv) since the DC Committee adopted the resolution set out in the Officer’s report, members are to be taken to have done so in accordance with the reasoning contained in that report and that reasoning included the proposal that a helicopter condition would be imposed;

 

(v) without such a condition, there was a clear potential for a significant incidence of lawful helicopter movements to and from the hotel both as an ancillary use and in the exercise of permitted development rights;

 

(v) accordingly, when the DC Committee delegated authority to grant planning permission to the Head of Planning, it did so on the basis that a helicopter condition would be imposed; and

 

(vi) the Head of Planning therefore exceeded his authority and acted unlawfully in granting planning permission without including a helicopter condition.

 

62. However, I agree with the submission made by both Mr Lowe and Mr Straker that the DC Committee’s resolution of 22nd April 2004, whereby the Head of Planning was authorised to determine the planning application subject “to such conditions that the Head of Planning or Development Control Manager considers appropriate”, delegated to the officers a general discretion as to the nature and content of the conditions to be imposed on the planning permission. I also accept that the question whether a helicopter condition should actually be imposed came within the ambit of the general discretion delegated to the officers by that resolution. As Mr Lowe observed, the Officer’s report merely suggested the use of a condition to restrict helicopter flights, but the resolution unambiguously delegated all these matters absolutely to the discretion of the officers.

 

63. I accept as correct Mr Straker’s

submission that the reasoning set out by Mr Nicholson in paragraphs 11 to 14 of his witness statement (see paragraph 59 above) reveals a rational and lawful exercise of the general discretion permitted to the officers under the terms of the DC Committee’s resolution of 22nd April 2004. In my view, that is sufficient to dispose of this third and final ground of challenge, which therefore also fails.

 

64. However, as already indicated, even if (contrary to my primary finding) this ground of challenge has been made out, I am satisfied that it is entirely academic because, having regard to all the circumstances of the case, it is one in which it would be appropriate for me to exercise my discretion in favour of refusing to grant the relief sought. I now turn to give my reasons for coming to that conclusion.

 

65. Clause 3.1 of the Undertaking (see paragraph 52 above) imposes a planning obligation on Mentmore “to prohibit the landing or taking off of helicopters within the Application Site.” I agree with Mr Lowe that this is a perfectly clear restriction and one that is plainly enforceable by the Council. In my view, it achieves the protection sought, namely the prohibition of helicopter flights to and from the hotel site. I also agree that it would be extremely difficult (if not impossible) to devise an enforceable planning condition for inclusion in Mentmore’s planning permission that would effectively control or restrict otherwise lawful helicopter traffic to and from the nearby golf course.

 

66. However, Mr Pereira submitted that, in effect, it has been accepted that a significant incidence of helicopter traffic would require appropriate consideration in the EIA. He submitted that if compliance with EIA requirements is to be properly achieved, the restriction on helicopter flights must be by planning condition rather than by means of a section 106 agreement. It was Mr Pereira’s submission that this was so because the EIA requirements are integrated into the procedures for applying for and granting planning permissions and varying conditions, whereas any variation or discharge by consent of the obligation under clause 3.1 of the Undertaking would not attract EIA procedures at all. Mr Pereira therefore submitted that if Court exercised its discretion in favour of refusing to quash the Council’s decision, such a course would infringe Article 10 of the Treaty of Rome because it would amount to a “measure” jeopardising the attainment of the objectives of the Treaty. He therefore submitted that I should refuse to exercise my discretion in such a manner.

 

67. I agree with Mr Lowe’s submission that Mr Pereira’s argument on this aspect of the matter “smacks of artificiality” and, in my view, on proper analysis it can be seen to be without any real substance.

 

68. Clause 3.1 of the Undertaking undoubtedly prohibits helicopter traffic to and from the hotel. Even assuming that there would otherwise be a sufficient incidence of helicopter traffic, the existence of the clause 3.1 obligation means that EIA considerations would only arise in the event that clause 3.1 was varied or discharged, but such a variation or discharge could only happen by consent. I accept Mr Lowe’s submission that there is no reason to believe that the Council would act other than bona fide with regard to the planning obligations contained in the Undertaking. I also agree that it is by no means clear that the EIA Directive would not apply to any such variation of discharge of the section 106 agreement in this case. In any event, as Mr Lowe pointed out, the Council would be required to have regard to the environmental consequences of varying or discharging the obligation (if it was persuaded to do so for whatever reason) and any failure by the Council to do so would be judiciable.

 

69. Accordingly if, contrary to my primary finding, this third ground of challenge has been made out, I am satisfied that the circumstances of this case are such that it would be appropriate to exercise my discretion in favour of refusing relief. For all the foregoing reasons, therefore, I am satisfied that this third ground of challenge either fails or is not one in respect of which it is appropriate to grant any relief.

 

70. Conclusion. In the premises I have come to the firm conclusion that this application must be and is hereby dismissed.