Case No: CO/3384/2002
Neutral Citation Number:  EWHC 2491 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London, WC2A 2LL
Thursday 21 November 2002
The Hon. Mr Justice OUSELEY
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The Queen on the Application of
Hampshire County Council Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr William UPTON (instructed by Richard Buxton) for the Claimant
Mr Tim HOWARD (instructed by Hampshire County Council Legal Practice) for the Defendant
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As Approved by the Court
Crown Copyright ©
Mr Justice Ouseley :
1. The extension of the M3 around Winchester, carving its way through the grassland of Twyford Down on its way to Southampton, had been a matter of deep public controversy in Winchester and beyond. The cost of a tunnel was thought to be excessive. But in its 1990 Decision Letter on this extension the Government agreed that, in return, the old A33 Winchester bypass would be broken out and turned to open grassland. The chalk sub-soil, properly seeded and tended, would become wild flower meadow land. This was done and the Bar End meadows, which were once part of the old by-pass, are now flourishing wild flower meadows.
2. In 1996 Hampshire County Council applied to itself for planning permission to turn the Bar End meadows into a car park of 428 spaces for the Winchester Park and Ride scheme; this would be additional to 238 spaces at Bar End Road. The Secretary of State called in the two applications for his own determination because of national policy implications and in the light of an undertaking given by the Government about the former bypass in connection with the decision on the M3 link through Twyford Down. A public Inquiry was held in late 1997.
3. The Secretary of State dealt with the undertaking in his 1998 decision letter in paragraphs 12-14.
"12. ... In the M3 decision letter the former Secretaries of State agreed that the removal of the existing bypass and the reclamation and planting of the area would be " ... a major environmental benefit of the published proposals" which would be welcomed by many, including objectors. The press statements which accompanied the M3 decision announced that the removal of the Winchester bypass and the restoration of the area would be a significant environmental gain to the setting of the City.
13. In the Secretary of State's view, there is no doubt that these statements constituted a commitment to carry out the reclamation of the bypass and he accepts that there was a general public expectation that this work would be carried out. He agrees the Inspector's finding that the land involved in the undertaking involved the whole of the bypass, that all of this land was to be broken out, topsoiled, and returned to chalk grassland and he notes that this has, in fact, now taken place.
14. He notes the Inspector's comment that local people appear to regard the undertaking as a pledge to keep restored former bypass in perpetuity as an open grassed area, available for purposes such as agriculture, amenity and recreation."
4. He went on to reject the argument of objectors that the land should be retained in perpetuity or that any such promise had been made. There had been no removal of planning responsibilities from the local authorities, no restrictive covenant and no interference with land ownership. The undertaking was material to the improvement of the environment in five areas: appearance, recreation, ecology, accessibility and environmental impact. The current proposal was examined to see how, if it all, it would frustrate those underlying intentions.
5. By his decision of 21st October 1998, the Secretary of State accepted his Inspector's recommendations and granted planning permission for the County Council's proposal, subject to various conditions. One of those dealt with the way in which, in turn, compensation for the loss of this mitigation land was to be provided.
6. The discussion at the public Inquiry had revolved around the identification by the County Council of five sites which could potentially be used to that end. But no one site could be finally identified as the compensation land because of ownership and feasibility problems. The Inspector however expressed a firm view as to the relative merits of the five sites. Having noted that it was generally accepted by participants at the Inquiry that, given time and good management, the five sites which emerged from the Councils' analysis could be as valuable ecologically as Bar End meadows, an acceptance with which he agreed, the Inspector said at paragraph 8.52 of his Report:
"I conclude that, in terms of ecological value to Winchester and its setting, four of the five sites are acceptable replacements for that area of the former bypass which would be lost should this development go ahead. The inferior accessibility balances the increased ecological potential for all except site 11. My preference would be first for Sites 4 and 8 which are both close to Bar End and also to an important SSSI, then Sites 3 and 7, and lastly Site 11."
7. Site 7 is the site which the County Council eventually chose to proceed with; it is land adjacent to Magdalen Hill Down. The site which the claimant would prefer, and in relation to which she contends that the consideration of site 7 by the County Council has been deficient, is site 4 at St. Catherine's Hill.
8. The Secretary of State, in paragraph 9 of his Decision Letter accepted the Inspector's order of preference and said:
"The Secretary of State has taken note of the County Council's intention to provide ecological replacement sites to compensate for the loss of chalk grassland area which would be lost through the proposals at Bar End and that five potential sites emerged at the Inquiry. He notes that the Inspector listed an order of preference for the sites and the Secretary of State commends this order of preference to Hampshire County Council."
9. In paragraph 16 of his Decision Letter, the Secretary of State said:
"He agrees that the provision of a mitigation site means that in terms of ecological value there will be no net loss to Winchester and its surroundings."
The way in which this matter was dealt with formally, in addition to the moral pressure exerted by those expressions of view, was by condition 5 which states:
"No development shall take place until there has been submitted to and approved by the local planning authority a scheme for the provision and management of alternative grassland (in mitigation for the 2.66 hectares which will be lost as a result of implementation of the permission hereby granted) on one of the sites marked 3, 4, 7, 8, or 11 on Plan 1 attached to Inquiry Document H3. The scheme shall be implemented as so approved."
10. It is clear that the Secretary of State expected those expressions of view by the Inspector and himself to be taken very seriously. There had been argument however at the Inquiry to the effect that the Secretary of State himself should assume responsibility for the enforcement of conditions imposed on any grant of permission. He declined to accept such responsibility and took the view that he should not be responsible for approving reserved matters applications. He said in paragraph 18:
"The planning authority, with their knowledge of local circumstances, are best placed to give the necessary approval to the details of the scheme and he does not consider it appropriate, exceptionally, to breach his usual approach that matters of detailed implementation are left to the local planning authority".
11. On 9th January 2001 the details required by condition 5 and other related conditions were submitted by the County Planning Officer, to the County Council for approval and two weeks later this application was notified to the public. The details submitted for approval in relation to condition 5 concerned site 7 as numbered in the condition.
12. On 9th July 2001, the Asset Management Sub-Committee of the County Council resolved to approve the submitted details. The matter was dealt with by that sub-committee and not by the Environment Policy Review Committee or its predecessor Planning and Transportation Committee because the Park and Ride proposal was sponsored by that latter Committee.
13. The decision of 9th July 2001 is the first decision challenged by the claimant who lives near to St. Catherine's Hill, has maintained a long standing interest in the local ecology and addressed the Sub-Committee at its 9th July 201 meeting in opposition to the proposal. She is also partially disabled. She is not alone in opposing both the loss of Bar End meadows as well as this particular replacement site.
14. Following a refusal of permission on paper by Collins J, I granted the claimant permission to argue the following points:
(1) that the Council had to consider a specifically identified mitigation area, which it might have failed to do as its boundaries were uncertain or changed;
(2) that no management plan had been approved as it ought to have been;
(3) that it was necessary to compare the mitigation proposals, in the light of the management plan, with the ecological value of what would now be lost at Bar End meadows so as to see if the mitigation was adequate;
(4) and most importantly, that in deciding whether or not to approve the submitted details, the Sub-Committee had to consider whether other sites, and site 4 at St. Catherine's Hill in particular, would better achieve the purposes of the condition, ecologically and in terms of public accessibility.
15. I refused permission to the claimant to argue (1) that condition 5 was unclear and should be read as if it were in the form recommended by the Inspector, and (2) that an environmental impact assessment ought to have been carried out in connection with this application for approval. When the matter first came on for substantive hearing before Burton J on 28th June 2002, Mr Upton for the claimant endeavoured unsuccessfully to resurrect that point.
16. However, as had been intimated at the permission hearing, there was more material forthcoming from the County Council as to the way in which it had selected site 7 and had considered the submitted details on and before 9th July 2001. The County Council's Regulatory Committee had also considered the details on 29th May 2002, and that was the second decision which the claimant seeks to challenge.
17. The County Council contended before Burton J that the Regulatory Committee had approved the details submitted in relation to condition 5, and that, whatever may have been the position as at 9th July 2001, the approvals were now unarguably valid. Mr Upton accepted that the complaints that no site had been specifically identified and that no management plan had been approved could no longer be maintained, provided that it had been open to the County Council to submit further details for approval. Mr Upton said that the time for submitting further details of reserved matters had passed. Burton J rejected that argument, holding that the matters to be approved were not reserved matters in the sense necessary for statutory time limits to apply.
18. But time did not permit him to deal with the remaining arguments on behalf of the claimant, which by now included an allegation that the decision of 9th July 2001 was unlawful because the Asset Management Sub-Committee had already predetermined the approval of the details as it had been the very Committee which had chosen to acquire and pursue the Magdalen Hill Down site. Leave had still to be obtained to argue that ground.
19. After a false start, the case came on before me. This new ground was not pursued. Mr Upton sensibly recognised that if his remaining original grounds were good in respect of the 9th July 2001 decision, they would also be good in respect of the 29th May 2002 decision and Mr Howard accepted that. However, even if Mr Upton's predetermination point had been sound in relation to the earlier decision, it could not be maintained against the later decision because of the different committee structure which was by then in place. Accordingly, I considered the remaining points which fall under the head of ignoring material considerations.
20. On 4th March 1999, the Land Sub-Committee, predecessor to the Asset Management Sub-Committee considered a report by the Director of Property which, amongst a number of matters concerned with the implementation of the planning permission, dealt with condition 5. It recognised that one of the potential replacement sites was owned by the Council but respecting the priorities for the sites, concluded that "every effort should be made to acquire one of the other preferred sites ... ."
21. Following a site visit by members, a further report to the same Committee in July 1999 by the Director of Property pointed out that four of the five mitigation sites were already in agricultural use and hence might "be viewed as less effective mitigation than the restoration of a brownfield site to chalk downland." This contrasted with site 4, using the numbering in the condition, which was not in agricultural use. It was owned by Southern Water and was a brownfield site : the public had no access; it was a former sewage treatment works but was now redundant. It left an area of dereliction within an important historical and ecological part of Winchester. The Sub-Committee approved the selection of this site as the preferred mitigation site and instructed negotiations for its acquisition to be opened.
22. By 24th July 2000, the Director of Property reporting to the Asset Management Sub-Committee, was having to report on problems. The owner of site 4, Southern Water, was willing to discuss selling the land to the Council but the land was "heavily contaminated" by waste materials which had been tipped on it. The County Council did not want to commit itself to expensive clean-up costs, but it did want improvements to the appearance of the site. The timetable for reaching an agreement with Southern Water as to the clean-up costs meant that the timetable for the acquisition of the land was unlikely to be compatible with the implementation of the Park and Ride Scheme, the availability of funding for which was itself uncertain beyond the current year.
23. Accordingly, the Director of Property recommended that the mitigation land alternatives to site 4 should be re-examined.
24. He described as the second favoured site, land in arable use at Magdalen Hill immediately adjoining a Butterfly Conservation Reserve, with a public right of way running along its boundary. The owners were willing to sell an area which, though not its preferred part, was nevertheless seen as acceptable.
25. The report continued:
"4.5. ... This is a very prominent site, close to Bar End, and acquiring and restoring the land to chalk grassland would make a major contribution to the landscape setting of Winchester. In principle, provision of this land and restoration to chalk grassland would meet the conditions attached to the planning consent for the Park and Ride extension.
4.6 The acquisition of the land at Magdalen Hill, together with the intended restoration of the Southern Water site on St Catherine's Hill, will offer access within reasonable walking distance to those people living close to Bar End and also a larger group of residents in the east of Winchester, including the Winnall area. Notably, it is these residents who live closest to the route of the M3 motorway. The Magdalen Hill land will provide opportunities for walks along the ridgeline with extensive views across the Chilcomb Valley and towards Cheesefoot Head.
4.7 The proposed mitigation site at Magdalen Hill extends to approximately 6 hectares (15 acres) which is somewhat larger than the area of restored grassland which would be lost at Bar End. However, given its location and strategic importance, it is proposed that negotiations be held for the purchase of an even larger area, up to 22 hectares (55 acres). The owners have indicated a willingness to negotiate for the sale of this larger area, which represents the extent of their ownership at this location. The purchase of this larger area would not only make a significant contribution by the County Council to the conservation of the chalk downland at Magdalen Hill over and above that necessary to meet the requirement of the planning consent, but would also assist the County Council's negotiating position for the St Catherine's Hill land."
26. The financial implications were considered and the Committee was recommended to buy the Magdalen Hill site. It was also pointed out that that acquisition would assist the negotiations over St Catherine's Hill without the additional imperative provided by DETR funding deadlines, which I infer were seen as giving Southern Water some leverage in negotiations.
27. The recommendation to purchase up to 22 hectares of land at Magdalen Hill (only part of which was to be used as mitigation land), was accepted, as was the recommendation, strongly affirmed by members that the purchase of St Catherine's Hill should be pursued for the major landscape improvements to the setting of Winchester which it would bring. Subsequent negotiations for the purchase of 22 hectares of land at Magdalen Hill were successfully concluded in December 2000.
28. On 9th July 2001, the Asset Management Sub-Committee considered a Report from the County Planning Officer about the details submitted in January 2001 for approval pursuant to the conditions on the Park and Ride Scheme planning permission. In paragraph 1.3, the Committee was told:
"1.3 Since planning permission has already been granted the Sub-Committee does not have to consider the principle of the development. The Sub-Committee's role is to address the details submitted and decide whether they satisfy the conditions attached to the permission."
29. On Condition 5, the report said:
"3.9 The details submitted in respect of the provision of replacement chalk grassland propose that land be made available at Magdalen Hill. This was one of five possible sites considered by the Inspector at the public inquiry. On 24 July 2000 the Sub-Committee approved the purchase of 22 hectares (55 acres) of land at Magdalen Hill, part of which was to be used as the land in mitigation. The purchase was completed in December 2000 and it is proposed that 9 hectares (22 acres) be returned to chalk downland and made available in mitigation for the loss of the Bar End land. Condition 5 requires that 2.66 hectares (6.5 acres) be found as replacement grassland."
30. The details were subject to more widespread consultation than would normally have been the case, because of the extent of public interest and controversy. The comments of the principal consultees were summarised as follows:
"(iv) English Nature objects to the proposed details relating to mitigation land and wishes to see the whole of the Magdalen Hill Down land included. It considers that land at Magdalen Hill Down is part of a smaller unit of chalk grassland than land at Bar End and the adjacent St Catherine's Hill, and the area of established chalk grassland (the source for colonising plant and invertebrate species) is also much smaller. Ultimately, it considers this is likely to result in the Magdalen Hill Down site supporting a poorer range of habitats and species. It points out that the remaining area of arable land at Magdalen Hill Down would be difficult to farm.
(v) The Hampshire Wildlife Trust objects, suggesting the Magdalen Hill mitigation land is not a fair exchange for the loss of the Bar End land, and raises points similar to English Nature. It also comments that the mitigation land is less accessible to the public than land at Bar End.
(vi) Winchester Meadows Conservation Alliance considers that the design of the amenity building could better reflect the historical context of the site. It points out that the pedestrian links and landscaping proposals differ from the plans displayed at the public inquiry. The Alliance does not consider that the Magdalen Hill land mitigates for the loss of the Bar End land in terms of ecological value or public access.
(vii) Butterfly Conservation supports the provision of alternative chalk downland at Magdalen Hill as it will extend the existing butterfly reserve. The Group requests that the County Council considers offering the whole 22 hectares (55 acres) in mitigation."
31. The claimant was among those who wrote in objecting. The issue was discussed by the County Planning Officer in these terms:
"Mitigation Grassland (Condition 5)
7.9 The principal concern relates to the location, amount and management of land - ‘the mitigation land' - at Magdalen Hill offered as compensation to that lost by the Park and Ride development. This proposal has been the subject of a number of comments from members of the public and consultees, including objections from the Hampshire Wildlife Trust and English Nature. Their main concern is that the Magdalen Hill land is not sufficient compensation for the loss of the Bar End land in terms of public access and wildlife diversity.
7.10 The principle of using land at Magdalen Hill is in accordance with the condition attached to the planning permission for the Bar End development since it is one of the alternative sites listed in the condition. The critical issue is the amount of land to be provided in mitigation. A total of 2.66 hectares will be lost at Bar End as a result of the development and the details submitted for approval propose 9 hectares as mitigation. It is considered that this satisfies the requirements of the planning condition. In addition, it is considered that the proposed management arrangements are satisfactory.
Concern has been raised about the relationship between the mitigation land and the remainder of the 22 hectares of land acquired by the County Council at Magdalen Hill in order to safeguard part of the setting of Winchester. It is within the gift of the County Council to manage its holding outside the ‘mitigation land' in a compatible manner. The key issue here is appropriate management rather than land dedication and the second recommendation of this report reflects this. Accordingly, the Director of Property, Business and Regulatory Services will bring a report to a future meeting setting out management proposals.
7.12 The County Council can, at its discretion, use its best endeavours to add further land in mitigation. One option being actively pursued is the residual part of St Catherine's Hill, which is currently held by Southern Water and is not open to the public. Southern Water is required under the planning permission for the Morestead Waste Water Treatment Works to clean up the contaminated material on the Hill and the County Council wishes to bring all of it into public ownership."
32. The recommendation to approve the submitted details was accepted; a management report on the land acquired at Magdalen Hill for non-mitigation" purposes was to be produced and the County Council was to "use its best endeavours to add further land in mitigation by actively pursuing the residual part of St. Catherine's Hill ... ."
33. On 27th July 2001, the Sub-Committee considered a further report from the Director of Property on the management of the whole of the Council's holding at Magdalen Hill. It said:
"3.2 It is proposed that the mitigation land be returned to unimproved chalk grassland by carefully reducing the level of topsoil and reseeding with grass and wildflower mix appropriate to a chalk downland environment. Following these works it is proposed that the land be managed on behalf of the County Council by the Butterfly Conservation Group as an extension to the existing Reserve and approval is sought to enter into a management agreement with the Group.
3.3 The land will be available for public access and links well with the existing network of rights of way in the vicinity. The land will include some frontage to Alresford Road so that access can be improved. The existing informal parking area will be retained."
34. This was not the first management report which officers, at any rate, had seen. It appears, and the history of the various draft reports permits no greater certainty, that following an initial report in November 2000 on locating and maintaining a butterfly conservation site at Magdalen Hill by Mr Flower of Flower Farms and the provision of further detail in December 2000, a Report was prepared in January 2001 and redrafted in April 2001 by the County Surveyor's Department. The mitigation site was to be returned to chalk grassland, and managed for the development of chalk grassland plant species and to allow moths and butterflies to colonise. It would be adjacent to an existing butterfly conservation site and would be managed by the Butterfly Conservation Group. An area larger than the 2.66 hectares taken at Bar End was required to establish a viable conservation site; it was uncertain whether more of the 22 hectares than the 6 hectares required for that purpose would be used for conservation. A small car park to provide greater public access and facilities for the disabled, and some footpaths might be developed which were more suitable for them. The Report concluded that the proposals would "provide a high quality habitat for many species of plant and animals". Its location and management meant that "it could be argued that [it] would offer a greater benefit to both the wildlife and the public than the St. Catherine's Hill Site."
35. It is far from clear as to whether these Reports, as appendices to a report from a Mr Stock, later stamped 26th July 2001, were before the Asset Management Sub-Committee at any of its relevant meetings. It is improbable that any were publicly available. There is some significance to that: the Reports explain briefly what the position is so far as the other potential mitigation sites are concerned. The site at St. Catherine's Hill suffered from the problems I have described which were holding up acquisition at an early date. Another nearby site was owned by Winchester College, which was unwilling to sell. Another site at Magdalen Hill was owned by the Church Commissioners who were also unwilling to sell and it would in any event have been a smaller site than the proposed Magdalen Hill site. I interject that the Inspector's preference put the two Magdalen Hill sites third equal as I read it. But the proposed Magdalen Hill site was preferable in everyone's eyes to the last site, although that letter was already in the Council's ownership.
36. In May 2002 the Council's Regulatory Committee subsequently considered amended details submitted pursuant to Condition 5. The area had been revised and the management plan refined. The County Planning Officer's Report for the meeting of 29th May 2002, described the site the management plan and public access. Access could be obtained from the road or a public right of way. It continued: "The site is accessible by bus and specific access for the disabled is provided by means of dedicated parking."
37. English Nature was reported as supporting and generally agreeing with the proposals. The Hampshire Wildlife Trust maintained its objections in principle to the selected site but had no real objections to the management plan.
38. The claimant maintained her objection in principle to the site; she emphasised the difficulties of reaching the site from where she lived by foot or by public transport. She compared this site with the ecological diversity now evident at Bar End meadows. Her objections were reflected in those summarised in the report:
"4.15 The main areas of objection relate to:
(i) the principle of extending the Park and Ride car park at Bar End, on the basis that the land should remain undeveloped;
(ii) the unsuitability of the Magdalen Hill site in terms of access from the city centre; it is more distant than the Bar End land. This is a particular disadvantage for disabled and elderly visitors who would not be able to reach Magdalen Hill or use the site as easily as they are able to at Bar End;
(iii) the bus service from the city centre along Alresford Road is too infrequent, making it more difficult to reach the site by public transport;
(iv) there are no toilet facilities at Magdalen Hill;
(v) the Magdalen Hill land is too exposed, steeply sloping and lacking in shelter. It is noisy and windy. In comparison the Bar End site is level and is sheltered from wind and noise;
(vi) Magdalen Hill does not offer comparable ecological diversity to the Bar End land, particularly in relation to plant species;
39. There were other objections which I need not detail. The County Planning Officer appended the April 2002 Management Plan and a paper setting out the background to the selection of this site as I have already summarised. He said:
"It is clear from the Secretary of State's decision under Condition (5) that any of the above sites were considered viable and offered a real potential to meet the exchange requirements, and there was nothing in the Inspector's Report or the Secretary of State's decision letter which caused concern in this respect if one of the agreed sites were to be used as a mitigation site. The conclusion was drawn that any of the sites would meet the condition attached to the planning permission. Arising from that review, it was found that the sites were either not available or the owners were unwilling to sell. Any formal route to acquire one of the sites would inevitably have been long and drawn out. This would have undermined the objective to provide the mitigation land contemporaneously, or as near as possible, with the area being lost at Bar end. In the event, the only available site was that at Magdalen Hill Down (site (iv) above)."
40. He referred to the decision to acquire the whole rather than just part of this Magdalen Hill site, the role of landscape and landform in site selection and the fixing of the site boundary, allowing for a larger buffer zone to the mitigation site to be constituted by the balance of the land acquired.
41. The County Planning Officer then set out his comments, and said:
"5.2 It is noted that there are objections to the proposal to extend the Park and Ride facility at Bar End. However, planning permission for the development exists. Furthermore, the approved details authorise the use of part of Magdalen Hill as mitigation land. Therefore, objections on points of principle about the use of land at Bar End for Park and Ride or the suitability of Magdalen Hill for mitigation purposes are not considered material to the determination of the amended details.
5.3 The revised mitigation proposals at Magdalen Hill improve the existing agreed proposals in a number of ways, primarily by setting out a detailed boundary, specifying the means by which chalk downland will be recreated, making provision for the land to be used and enjoyed by the public, with specific provision for disabled visitors, and integrating proposals for the ‘mitigation land' with the adjoining land also in County Council ownership. The land is accessible by means of existing public rights of way and a regular bus service."
42. His recommendation that the revised details be approved was then accepted.
43. The Report to the Regulatory Committee in May 2002, which was accepted by the Committee, embodied the same approach, of which complaint continues to be made, as adopted in the July 2001 Asset Land Management Sub-Committee. Each Committee focussed on the details submitted for the Magdalen Hill site. They did not examine the preferred order of sites as indicated by the Inspector and Secretary of State. They did not compare the ecological potential of that site with the existing or potential ecological state of Bar End meadows. Nor did they compare the relative ease of public accessibility to the sites for Winchester residents, although they did look at public access within the site. They each took the Magdalen Hill site as given, as a fixed point in the debate. The issue between the parties was not whether that was the approach in fact adopted, but whether it was lawful to adopt that approach.
44. Mr Upton submitted that in the context of the origin and purpose of condition 5, there were a number of material considerations which had been ignored. He put the same points as showing that the details submitted did not comply with the requirements of condition 5. I could not see that anything was gained by that alternative form of analysis and I shall deal with his submission on the simple basis that it is that material considerations were ignored.
45. He submitted that it was for the Committee which had to approve the details submitted under Condition 5 to consider whether the mitigation site chosen was the appropriate site. That Committee should not regard itself as simply presented with a fait accompli in respect of the selection of the site by the Council in its land acquisition capacity. It had to consider the submitted details against the Inspector's and the Secretary of State's expressed preferences particularly for St. Catherine's Hill ahead of Magdalen Hill Down, even though no such preference was formally embodied in condition 5. It was not enough for the Committee to approach matters on the basis that any of the 5 sites satisfied in principle the objectives of the condition.
46. Mr Upton next submitted that the Committees should have considered not just the management plan details for the site chosen but also the ecological quality of Bar End meadows as it now was and could develop in the future against the actual and potential ecological quality of the chosen mitigation site. If the ecological mitigation in quality i.e. diversity and number of flora and fauna, and quantity i.e. area, did not match that being lost, the details should not be approved, and another site should be considered. At all events, that comparison should at least be undertaken as a material consideration. The ecological evidence showed clearly that at present Magdalen Hill had but one tenth of the grass species, and less diverse fauna, that it was not part of a larger ecological unit unlike the St. Catherine's Hill site or Bar End, that it lacked its links to other sites and would suffer from the unwanted side effects of nearby agricultural activities. A butterfly led conservation plan at Magdalen Hill could not possibly be thought to reproduce the quality to be lost at Bar End meadows. A proper study of Bar End meadows should be undertaken before any such comparison was concluded.
47. The comparable public accessibility of the candidate sites, especially St Catherine's Hill and Magdalen Hill should have been considered, particularly by reference to the public accessibility at Bar End meadows which would be lost upon development.
48. Mr Howard for the County Council, in his clear and very able submissions, contended that the Committees were each confined to examining the details as submitted for the Magdalen Hill site. The question of which site to pursue and their various comparable attributes, whether as between the candidate sites or as between Magdalen Hill and Bar End meadows were factors for the Council to consider in its capacity as developer in making decisions about land acquisition.
49. This it had done, so far as necessary. The claimant's preferred site was being pursued but the clean-up costs were very considerable and agreement as to who would bear them had not been reached. It was relevant for the Council to have regard to its timetable for implementing the Park and Ride Scheme, and the cost: a compulsory purchase order would delay the scheme, because condition 5 required that the submitted and approved details be capable of implementation on the mitigation site as the Bar End development proceeded. Mr Upton did not dissent from the relevance of the timetable for implementation. The Council had considered conscientiously the other nearby site and that it would not be sold willingly by Winchester College.
50. As for ecology, it would be pointless to compare Bar End meadows now with any proposed mitigation site. Any comparison would be better made with Bar End before any ecological management but after the removal of the old road. Alternatively Bar End meadows could be compared, not with Magdalen Hill as it existed, but rather with its potential once it was being managed for ecological purposes. In any event, it was a false comparison because the Secretary of State had not embodied his acceptance of the Inspector's preferences in the condition and, as paragraph 8.51 of the Inspector's Report showed, it had been generally accepted at the Inquiry that with time and good management, each of the five candidate mitigation sites could be as ecologically valuable as Bar End; and the Inspector had agreed. In ecological and setting terms, he concluded that four of the five, including Magdalen Hill would be acceptable replacements.
51. Likewise, the Inspector had considered the public accessibility of the sites, and had concluded that for four of the five sites, their drawbacks in that respect were counterbalanced by their greater ecological potential. The Reports did also refer to public accessibility and members obviously knew the relative locations of the sites and how far they were from Bar End and residential areas.
52. However, the key submission was that those were site selection issues and not issues for consideration by the Committees deciding whether or not to approve the submitted details. They could only ask whether the details were satisfactory for the Magdalen Hill site. In that respect, the Council was a developer like any other and it would not be open to a Planning Committee to reject acceptable details on the grounds that it preferred say a completely different design or layout.
53. In broad terms, although not in all aspects, I accept Mr Upton's submissions. It is clear from the Reports and from Mr Howard's submissions that the County Council adopted what it saw as the orthodox approach to the consideration of the approval of reserved matters, whether in the statutory or broader conventional sense. I do not need to decide whether that orthodox or conventional approach is right, nor do I need to cast doubt on it. But this is not an ordinary "principle" versus "details" case.
54. The question of what considerations are material depends on the purpose of the condition, and its terms. The context for ascertaining that is the very unusual background to this particular development: the development site was itself mitigation land for a very controversial road; there was a clear public expectation that it would remain undeveloped; the Council obtained permission on the basis that any one of five sites would replace it adequately but that there was a clear order of preference to which it had to have regard. The Secretary of State in his planning decision makes that clear. He did not remove the Council's planning powers in that respect because he supposed that the Council would take seriously what he said, in its planning capacity. That order of preference related to the planning considerations of ecological quality or, put another way, the degree of ecological mitigation, and public accessibility. All those aspects are planning considerations.
55. The next question is whether those considerations were only material to the decision of whether or not to grant planning permission subject to condition 5 in the terms formulated, or whether they were also material to the approval necessary under that condition. The conclusion of the process of obtaining an implementable planning permission here involves the selection of the mitigation site having regard to the Secretary of State's order of preference, based on relative ecological quality or degree of mitigation and public accessibility. It is to be noted that the selection of the site on that basis and having regard to other material considerations comes after the grant of planning permission as part of the evolving process of implementation. It is at the later approval stage that those planning considerations are particularly relevant.
56. Mr Howard's submissions lead to the curious result in law that those planning considerations fell outside the remit of the committee entrusted with the task of reaching a planning conclusion on the submitted details and were instead only to be considered by the non-planning body which decides on site selection and land acquisitions.
57. The County Council can of course say that in its 1999 and 2000 land acquisition decisions, it did in fact consider the order of preference, the relative advantages of the sites and the timing and cost of their acquisition. But it emphasises the flaw in Mr Howard's approach for the obligation to be accepted to consider those matters and yet for those planning considerations to be dealt with exclusively by the land acquisition committee, without public consultation.
58. I appreciate that so far as the July 2001 Committee is concerned, the land acquisition and planning approval committees were in fact the same bodies and what it knew in one capacity about the cost or availability of the various sites it knew in another. But there is an important difference in the capacities in which it acted. As the effective planning committee, it was obliged to consider the representations made by the public as a result of its consultation process, in so far as they were material. But the process of site selection and the evaluation of their comparative merits as against Bar End meadows was to the Council immaterial at the stage of approving submitted details, along with any representations by the public about those matters. There were two separate Committees anyway in May 2002, and so no such argument is available to the Council in relation to the second decision.
59. The wording of condition 5 does not limit the County Council in the way contended for by Mr Howard. I can see no reason why the planning committee should be precluded from analysing why other sites have not been selected or whether one was not so much better that greater time and cost should be incurred in its acquisition. I consider that the obligation to submit details for approval on one of five sites in no way prevents the planning committee deferring or refusing approval on the grounds that it wished to consider what might be achievable on the other sites also capable of being the subject matter of approved details.
60. Mr Howard argued that because the Secretary of State and Inspector had accepted that any one of the five sites would mitigate the ecological loss and that with four of the five sites, the inferior accessibility balanced the ecological gain, the decision in principle had been made and it was simply then for the Council to choose its site. If that were right, the Council could simply have gone straight for site 11, which was plainly not the intention behind the condition. I do not consider that the wording of the condition is the exclusive determinant of the considerations material to a decision arising under it; the purpose of the condition in its context can illuminate what is relevant. Mr Howard's argument is wrong because it ignores the role of the order of preference and the relative advantages which the sites could offer vis a vis mitigating the loss of Bar End meadows. That is something which can only be dealt with from the planning point of view at the stage of considering details submitted under condition 5. It would be wrong to treat the Secretary of State's decision as bringing all candidate sites up to an equal level, in the light of his endorsement of the Inspector's order of preferences.
61. My conclusion is strengthened in this case by the past undertaking, and the public interest in the issue. These planning matters are naturally best considered through the consultation process set up to consider the details rather than through decisions on the land acquisition process from which the public are excluded.
62. I consider that that too is what the Secretary of State was expecting when, as set out in paragraph 10 above, he refused to remove the County Council's planning responsibilities. I do not consider that he merely had in mind leaving with the Council as planning authority the question of whether the management plan was appropriate or acceptable for whichever site was put before it. He, accepting the public's concern, left the issue with the County Council in the expectation of its involvement as planning authority, with the public consultation which that could naturally be expected to entail, in overseeing or checking all aspects of the fulfilment of the obligations in condition 5, which follow from the development of the erstwhile mitigation land at Bar End meadows.
63. Accordingly, in my judgment, the County Council erred in failing to consider and in failing therefore to consider the public's representations on the advantages which the site preferred to Magdalen Hill, notably St. Catherines, might have in terms of ecology and public accessibility in mitigation for the loss of Bar End meadows. The occasional comment on road and bus access does not deal with the gravamen of the point.
64. I also consider that the ecological comparison has to be made between what Bar End meadows has now become, together with its potential, and the potential of the various mitigation sites. It is in that way that the adequacy of the mitigation can be assessed and decisions made as to whether other land should be brought in to the mitigation equation. A comparison using Bar End meadows' state as at 1997-8 involves an artificially blinkered approach; mitigation is required for what is to be lost, including its potential. There is no need to speculate as to its 1997-8 potential when that is now known.
65. It would be pointless to compare Bar End as it now is with any mitigation site as it now is; it would not be replacement for something lost if it were already as good; this would nullify the point of the mitigation land. It would also make the permission unimplementable and that is not the purpose of the condition.
66. I emphasise that the comparison does not require a site or a management plan for it which will reproduce precisely what now is found at Bar End. That was not the purpose of condition 5 and the Inspector's preference or his comments about equivalent value. The fact that Magdalen Hill would be managed as a butterfly reserve, which appears agreed to be the best plan for it, does not mean that it cannot be seen as of equivalent value. But the differing ecological advantages of that approach and of St Catherine's Hill are relevant from a planning point of view to its approval. What is required is an overall judgment by the Council as planning authority that the combination of size of site, subsoil, current use, location, links, management, neighbouring uses and public accessibility means that there is no net ecological loss to Winchester and its surroundings and that appropriate compensation for the loss of Bar End meadows is provided. That requires degrees of ecological gain and public accessibility to be considered through the detailed stage rather than simply the details of the one selected site. In that way, at the detailed level and not just the general Inquiry level, the underlying intention of the original undertaking would be fully met again. As the Secretary of State's decision made clear, as I have set out above in paragraphs 4 to 9, that is the objective of condition 5 and which sets the framework for the considerations material to it.
67. I also consider that the cost of acquisition and the timetable of acquisition in relation to the implementation of the Park and Ride scheme are relevant factors. It was not intended that the implementation of condition 5 should frustrate the underlying development. That is why five sites were put into the condition, one of which the Council already owned. But it was intended that they should be conscientiously analysed in an overall planning framework rather than simply that details of one site should emerge for consideration. The principle was that one of the five sites had to be used as mitigation. But the detail involved considering which one should be adopted and its degree of mitigation rather than just the detail of the one submitted by the developer.
68. I should add in saying that that I am not suggesting that the Council did act unconscientiously in that respect. The evidence shows that in its developer capacity it did respect the order of preference, did try to pursue St Catherine's Hill and had good reason for turning to Magdalen Hill for the immediate future. However, it is for the planning committee, not the developer committee to reach an overall view on those issues with the benefit of public consultation.
69. Mr Howard may be right in saying that the ecological evidence would not warrant the Council reaching a different decision but the evidence before me is nothing like strong enough to persuade me that an alternative decision cannot be reached.
70. It was briefly submitted by Mr Upton that the County Council should have been prepared to reconsider the principle of the Park and Ride development in the light of the burgeoning ecological interest of Bar End meadows and that the submission of details pursuant to condition 5 provided the opportunity to do so.
71. I reject that submission. There is no error in refusing to reconsider the principle of a development in the course of considering whether to approve details which were required to be submitted for approval. Indeed, it would have been an irrelevant consideration on such an application and it would have been unlawful to refuse to approve the submitted details on the grounds that the permitted development was itself no longer desirable.
72. Mr Upton may be right in saying that because the development is being implemented by the County Council, it can decide at any stage to cease to pursue it. But he has been unable to point to any legal obligation to do so or to consider doing so, merely because a request to do so has been made as a misconceived objection to the submitted details. Even if there were some such obligation, neither of the decisions challenged were ones which could arguably rise to any such obligation.
73. However, for the reasons which I have given this application is allowed and the decisions of 9th July 2001 and 29th May 2002 are quashed, in so far as they approve the details submitted in relation to condition 5.