Golf course judicial review case reversed on appeal

18 May 2014 by David Hart KC

Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment

 The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here)  that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.

 The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.

The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.

Indeed, the whole debate about whether the area “needed” another golf course turned out to be misplaced, according to the CA. It decided that the relevant policies did not so require, and even if they did, it

was an unexacting requirement and was capable in principle of being met by demonstrating an unmet demand for an elite facility of the type proposed.

Judged against that standard, the planning authority’s decision was not irrational.

Contrast what the judge had said:

“Need” does not simply mean “demand” or “desire” by private interests. Nor is mere proof of “viability” of such demand enough. The fact that Longshot could sell membership debentures to 400 millionaires in UK and abroad who might want to play golf at their own exclusive, ‘world class’, luxury golf club in Surrey does not equate to a “need” for such facilities in its proper public interest sense.

In similar vein, the CA thought that the authority had been rational in coming to the view that the golf course did not have a detrimental impact on the local landscape, part of an Area of Outstanding Natural Beauty. The following extract from [53] in Richards LJ’s judgment demonstrates the high standard an applicant has to discharge in order to make a ground of irrationality stick:

…whilst in the light of the evidence I see considerable force in the officers’ advice, I am not persuaded that the weight of the evidence and advice was such as to leave no room for members rationally to conclude as a matter of planning judgment, in the light of all the written material and what they had seen on their site visit or visits, that the overall landscape character would not be compromised.

The other successful grounds before the judge were similarly dismissed.

Conclusion

The CA’s decision, briskly reversing a robustly expressed judgment, reminds us that in the world of planning judicial reviews it is not easy to achieve the quashing of a decision, unless there is a manifest error of law. A decision involving some exercise of planning judgment is always difficult to review. You cannot quash a decision just because you, the judge, would have reached a different decision. To do so risks the judge straying into matters which it is for the planning authority, not the judge, to decide.

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