Legal Case in Full

The Royal Courts of Justice have finally confirmed that we are allowed to publish, in full, the transcripts of the court hearing and judgement in relation to our request for a judicial review of Newcastle City Council’s decision on Newcastle Great Park Consortium’s planning application for Cell A/B1.

The full transcripts are set out below.

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

Royal Courts of Justice

Tuesday, 11 February 2020



B E T W E E N:

The Queen on the application of


                                             (on behalf of SAVE NEWCASTLE WILDLIFE)                              Claimant

– and  –

                                                        NEWCASTLE CITY COUNCIL                                        Defendant

– and  –

                                               NEWCASTLE GREAT PARK CONSORTIUM                 Interested Party


MR P. BROWN QC(instructed by Temple Bright LLP) appeared on behalf of the Claimant.

MR R. MOULES(instructed by Legal Services, Newcastle City Council) appeared on behalf of the Defendant.

MR C. BANNER QC(instructed by Walker Morris LLP) appeared on behalf of the Interested Party.




                                                                                                                                   Page No.

SUBMISSIONSre application for judicial review:

            Mr BROWN                                                                                                            1

            Mr MOULES                                                                                                         24

            Mr BANNER                                                                                                         34

            Mr BROWN                                                                                                          39

            (See separate transcript for judgment)


            Mr BROWN                                                                                                          41

            Mr MOULES                                                                                                         44

            Mr BANNER                                                                                                         47

            (See separate transcript for judgment)


Tuesday, 11 February 2020

(2.06 p.m.)

MR JUSTICE LEWIS:  I apologise to you again, Mr Brown, for having to come this morning but never mind.

MR BROWN:  My Lord, we are—-

MR JUSTICE LEWIS:  It is lovely to see you all—-

MR BROWN:  — we are here now and—-

MR JUSTICE LEWIS:  — and it is lovely to see you this afternoon.  Yes.

MR BROWN:  Indeed.  Thank you. My Lord, as you know, I appear for the claimant.  My learned friend Mr Moules for the defendant.

MR JUSTICE LEWIS:  Can we stop?  There is something that has not been brought up.  (After a pause):  I am sorry, Mr Brown.

MR BROWN:  Is your Lordship content if I continue or—-

MR JUSTICE LEWIS:  Oh, yes, yes.

MR BROWN:  As I say, Mr Moules for the defendant and Mr Banner QC for the interested party.  My Lord, can I take it that you have the application bundle, a bundle of authorities, or a supplementary bundle effectively of authorities, because some are in the application bundle, and two skeleton arguments; one from me and one from Mr Moules?

MR JUSTICE LEWIS:  I know I have got them both and what I have just asked them to bring down – I think I have put – Oh, no, I have got it.  I put the defendant’s skeleton argument into a separate bundle and I have not brought that bundle with me but Stuart is sorting that out, but I have got your skeleton argument.

MR BROWN:  I am grateful.  Your Lordship will then know this is my claim.  It is a renewed application for permission to seek judicial review of the defendant’s decision to grant outline planning permission for a residential led development on land at Newcastle Great Park.  Your Lordship will have seen the claim is brought on two grounds.  One relates to the defendant’s approach to compliance with what we say is the key development policy (that is policy NN4) and the second concerns the way in which the appropriateness of the development, in green belt terms, was assessed.  Your Lordship will also have noted permission was refused on the papers by Mrs Justice Laing and in due course I will need to explain to your Lordship why, in my submission, her reasons for refusing permission were wrong.

              My Lord, the factual detail is set out at some length in the statement of facts and grounds.  I am going to try and short circuit some of that today and, given the time, probably most easily do it by reference to the facts that are relevant to each of the grounds as I come to that ground, rather than going through the totality at the beginning.  But, my Lord, just in terms of navigating and understanding some of the points that I am going to make, it may be helpful if I ask you to turn up the planning permission, which your Lordship has got at B1, but, in particular, the plan that goes with it, which is at p.B20 of the bundle.


MR BROWN:  And, my Lord, in essence, at B20 your Lordship sees the application site, which is effectively the area that is coloured on the plan, and also the overall disposition of uses, and your Lordship will see on the western or the left-hand side of the plan there is the red brick, orange or pink which is effectively residential; the area of blue towards the middle, the education uses, and then your Lordship will see, slightly separate from that part of the development, an area which is marked out in green but has playing pitches shown on it.  And, my Lord, for present purposes, what is important for your Lordship to note is that the residential and education parts, the left-hand side of the development, is within an area which is allocated in the plan and is known as NN4a. The area to the right is not part of the NN4a allocation. The playing pitches are on land which is known as Cell B1, and the reasons or the relevance of that will become apparent, I hope, my Lord, very shortly.


MR BROWN:  My Lord, if I start with ground 1, and I will pick up the particular facts in the way the matter was dealt with in due course, but just in terms of the structure of the argument, it starts with s.38(6) of the Planning and Compensation Act.  Your Lordship will be very familiar with the principle.


MR BROWN:  Applications, planning applications, are to be dealt with in accordance with the development plan unless material considerations indicate otherwise.  From there, my Lord, I go to what I hope is a proposition of trite law, that in order to apply s.38(6) correctly a local planning authority needs to properly understand and properly apply the policies in its development plan. 

              In the present case, my Lord, the development plan was the Core Strategy and Urban Core Plan for Gateshead and Newcastle and, in particular, there is a site-specific policy, NN4, which allocates land at Newcastle Great Park, and your Lordship has that within the bundle—-


MR BROWN:  — at B329.  My Lord, I will very shortly come to the specifics of what is at 239 but your Lordship will see, in overall terms, it is an allocation of the site for educational and residential use.  That is para.1.1.  And then there are some fairly detailed requirements set out there and, my Lord, this is the site-specific policy which deals particularly with NN4, what is expected there.  It covers a wide range of matters, not just the type of uses but also the infrastructure, the sorts of mitigation that will be required.  And because it is, in that sense, an all-embracing policy which covers a number of topics which are dealt with generically by other policies in the plan, the claimant starts from the proposition that, although when you are asking the s.38(6) question, of course, one has to look at the plan as a whole, this is the single most important policy.  It is the policy by which, when officers analysed it, they assessed whether or not it was acceptable in principle.  And because it is the policy which decides whether or not the development is acceptable in principle, the claimant starts from the basis that if there is a significant or material conflict with this policy, it would be difficult to conclude that the application accords with the development plan as a whole.

              My Lord, if one then looks at the text, your Lordship will see at para.1:  “Newcastle Great Park comprises”, and what it comprises is set out in two parts.  Your Lordship need not concern himself with the second of those, but the first:

              “the existing Great Park development area NN4d, this includes site NN4a which is now allocated for approximately 880 new homes … and education provision for … primary and secondary aged children …”.

              And dates are given there.  And then (ii), as I said, not of relevance in this case, but the reference to NN4b and NN4c.  And then there are a number of specific requirements set out in the following seven paragraphs.  A requirement for a comprehensive approach and for masterplans, but in terms of what specifically is also expected to come with the allocation, if one looks to para.7 there are some sixteen requirements set out there and at this stage, my Lord, I draw your Lordship’s attention to the fact that para.7 starts with the words:

                        “Development at Newcastle Great Park will be required to provide …”.

              And for these purposes, my Lord, Newcastle Great Park is quite plainly what is defined in para.1.

MR JUSTICE LEWIS:  It is a, b, c and d but not Cell B, or Cell, B1.

MR BROWN:  Well, my Lord, Cell B is part – It is not Cell B, my Lord, no. Quite right.

MR JUSTICE LEWIS:  Not Cell B1, yes.

MR BROWN:  Not Cell B, absolutely, and, indeed, the officer’s report, as I will show your Lordship shortly—-


MR BROWN:  — acknowledges that Cell B is not part of the NN4 allocation. And then as to what should be provided there, item (i) of para.7, the range of sizes, types and tenures of housing, and then (ii) “for education provision for primary and secondary age school children to serve the needs …”, and then if one comes down the list, my Lord, there are a number of others, but can I simply at the moment draw your attention to (ix):

              “Protection and enhancement of important trees and hedgerows, and areas of ecological … importance.”

              At (xii):

              “For open spaces to include … informal recreational areas including sports, playing pitches and children’s play areas.”

              And, my Lord, I probably should have said, in relation to 7(ii), when I took your Lordship there, it talks about education provision. Your Lordship will – well, you may agree or disagree – but as far as the claimant approaches it, education provision of school necessarily carries with requirements for playing pitches and sports fields as well.  So one might say that the sports pitches are picked up under both 7(ii) but also then open spaces to include access to formal recreational areas under (xii).

MR JUSTICE LEWIS:  Well, your case is at the least stage, it is really in one sentence.  It has got to be development at Newcastle Great Park and there must include open spaces and that is the end of it.

MR BROWN:  My Lord, yes.  Yes, that is indeed it.  And so your Lordship, against that backdrop and that summary, your Lordship will know and, indeed, will have seen that the application was – well, I will come to that at the application – My Lord, as far as Cell B1 is concerned, as we have explained in our skeleton argument, first of all, whereas NN4 was taken out of the green belt specifically for the purposes of this allocation, Cell B1 remains within the green belt.  Parts of Cell B1 are designated in the development plan as a local nature reserve and as a site of local conservation interest.  But also your Lordship will have seen that, as a result of other earlier developments in the surrounding area, at earlier stages of Newcastle Great Park, there were s.106 agreements and contributions which relate to Cell B1 and cover the use and the laying out of that, in part for ecological mitigation but also in relation to the nature of its use by the public, and certainly at the moment Cell B1 is an area of public open space but it is not controlled in the sense that it is limited to particular activities, such a sports pitch. I will not quite call it a country park, but it is a place where people can walk—-


MR BROWN:  — and it is unregulated in that sense.  

              And so, my Lord, before we come to what the application provided, the claimant’s starting point is that if you take the combination of the development plan, policy NN4, and the existing permissions which secure or support the use of Cell B1 for that less regulated form of open space, you would end up with, compliance with the development plan would produce the 880 houses that are needed, it would produce the two schools that are required with the playing fields that are needed for those schools and, indeed, possibly for the wider population in the 880 houses, but that would be done within the NN4 allocation and you would still then have the benefit of Cell B1, as it was originally intended to be, in part in order to mitigate the impacts of other forms of development.  In other words, you would have the benefit of the playing fields and the benefit of Cell B1 as it currently is and will be supported by those s.106 agreements that are there.

              My Lord, what one has in the application, in contrast to that, as your Lordship has seen, is an application not for 880 new homes but for 1200 new homes, all of which are provided within the NN4a area, and the built development associated with the two schools, so the classrooms and so on, within the NN4 area, but the playing fields provided, as your Lordship has seen, within Cell B1.  And we say that the reason why it is even necessary to go into Cell B1 is because the application has upped the number of houses from the policy requirement as a result of which there is no longer room for those things within the NN4a area.

              And, my Lord, that transferring over of the area of the playing fields has a number of adverse consequences, adverse consequences which – and I will come back to whether this matters – but they were – it is not just the claimant saying these are adverse consequences, they were specifically identified at later stages in the officer’s report.  My Lord, I have summarised those in the skeleton argument at para.15.  I am giving your Lordship the reference to where in the officer’s report you can find those.  I do not read the list out but your Lordship will see that there is a range of impacts there from impacts on species, impacts on landscape to, possibly more significantly, impacts on the open space, the way it can be used, the loss of recreation and, indeed, failure to comply with other policies in the development plan in relation to the quantity, type and proximity of open space to residential development.  And we say, my Lord, that all of those adverse effects are a direct result of the fact that instead of 880 homes there are now 1200 units, so that the playing fields have to be placed on this area of open space.

              In our submission, my Lord, a proper analysis of compliance with the policy, a proper analysis of the principle of the development in accordance with NN4, would have acknowledged that fact and acknowledged that these adverse consequences are the result of the additional number of dwellings and are the result of a failure to comply with that part of NN4 which requires, we say, those things to be provided within the NGP area.

              Now, my Lord, I appreciate there is an argument against that, which I will come to in due course, but if I am right at that point, in our submission, the officer’s report simply does not analyse or look at the matter in that way.  Your Lordship has the officer’s report earlier in the bundle.


MR BROWN:  It starts at B21.  My Lord, I might just briefly show your Lordship in that regard B2, the recognition – I am sorry, in para.2 of B22, that Cell B1 is part of the application site but it is not part of the allocation.


MR BROWN:  So your Lordship sees that point acknowledged there.  If one then goes, my Lord, to B47, the report, as is customary, sets out a range of background matters, including a summary of the various representations that were made, but it begins with the officer’s assessment at B47, and para.84 identifies the following main issues, the first of which is the principle of development.  And if your Lordship turns to B48, your Lordship will see that under that heading NN4 is the policy picked up at para.86 by reference to which the principle is assessed.  Your Lordship will note at the beginning of para.88 it says that there are sixteen requirements on what development at NGP will be required to provide.  It says:

              “These criteria will be discussed in detail in the relevant sections of this report.”

              I ask your Lordship to note the way that that is put, a promise that it “will be discussed in sections of this report”, but particularly, my Lord, in the context of what will be discussed is sixteen requirements on what would be developed at NGP.

              And then your Lordship sees para.91 picks up the first criteria – the range of type, size of housing.  It comes to a conclusion that that can be secured.  At 92, one of the other criteria, development to provide education provision for primary and secondary aged children. It is said that site is considered to meet with this policy requirement.  Pausing there, my Lordship will note that that is patently only a reference to the buildings.  It does not encompass the playing fields that might be required as part of a school.  And then para.93:

               “Assessment of the development against the other criteria … will be carried out in the other relevant sections of this report”.  

              So, in essence, the promise at the end of para.88 repeated there.

              My Lord, paras.95 and 96 go on to deal with the general principle of the residential and the education treatment.  Paragraph 96, in particular, deals with the question that the application is for 1200 units rather than 880, and it points out, quite rightly and fairly, that the policy does not limit the number of units to 880. The policy is in relation to an approximate number.  But it does say, and your Lordship will see just over two-thirds of the way through para.96:

              “The impact of the additional housing numbers will be assessed through the detail of this report.”

              And, in my submission, my Lord, that is an entirely appropriate thing to say because the additional number of houses does have a consequence for NN4.

              My Lord, the claimant’s complaint is that that promise, that the impact of the additional housing numbers, is not, in fact, carried through in the remainder of the report.  I will come back to that very shortly.  Just finishing my references in terms of the section on principle, your Lordship will see at para.100:

              “Taking all of the above into account it is considered that the principle of the development for housing and education isin accordance with the NPPF and Policies [including NN4, of the plan].”

              And, my Lord, you will appreciate that on the basis of the discussion up to that point, that patently does not embrace the analysis of the other sixteen elements which are, we are told, to be discussed later, and where the impact of the additional housing is to be discussed.

              And so, my Lord, if one could go to the remainder of the report to see whether or not that promise is fulfilled.  In the claimant’s submission, my Lord, it simply is not.  I would be – I am very happy to take your Lordship through parts of the remainder of the report.  I have already indicated to your Lordship in general terms where the findings of adverse effect are found.  My simple submission at this stage is that although there is a finding of adverse effect in relation to each of those, at no stage in that analysis is it put back into or viewed through the lens of policy NN4.  At no stage is that described as a failure to do something which NN4 required and at no point, in that analysis of those adverse effects, is it described as a consequence of the increase in the number of houses.  As I say, my Lord, I am very happy to take your Lordship into the body of the report to show that if need be, but I am conscious that we constrained for time and, more to the point, my Lord, as I read certainly the defendant’s response to my claim, Mr Moules does not say, “Well, actually you are wrong about that.  The report does look at it through that lens of a failure to comply with NN4”. What Mr Moules says it, “Well, we did not have to look at it through that lens”.

MR JUSTICE LEWIS:  The starting point is quite a simple one on the first ground, not the second ground.  It really is whether or not it is arguable that what you say the policy means, means that. Does it mean the open spaces have to be within Newcastle Great Park or can they do it outside it?

MR BROWN:  My Lord, I am grateful and I apologise if I have taken a long—-


MR BROWN:  — stage to get there but—-

MR JUSTICE LEWIS:  And that is quite a very short argument.

MR BROWN:  And, my Lord, that is very short and—-

MR JUSTICE LEWIS:  The second, and more problematic issue, is whether or not it would have made any difference—-

MR BROWN:  Well—-

MR JUSTICE LEWIS:  — because what they will say, and what troubles me – well, they have not said it yet, oddly enough, in relation to this, they have in relation to green belt – is that they could say, and they might say when they get going, that it is highly unlikely that there would have been a different outcome here because, although they have not gone through the exercise, they knew there were 400 extra houses, they knew that it was not going to be on the – the playing fields were not going to be on Newcastle Great Park.  They considered whether or not it was going to be – interfere with the open space and the green belt, and they concluded that it would not, and, in reality, they are likely to say, when they get going, it is a material planning consideration, to depart from it, to have the housing and the schools on Newcastle Great Park and to use this provided there was no overall impact. So I imagine they will say that s.31(1)(c) applies to this as well.

MR BROWN:  My Lord, can I take those two points in turn?  The first I can deal with shortly because—-


MR BROWN:  — in large measure I have covered it simply by what I have said in relation to the policy.  The policy itself starts by defining what NGP is and it is patently not Cell B1.


MR BROWN:  It goes on to say, “This will be provided at NGP”.


MR BROWN:  I say, in relation to the education provision, that is item (ii), that that is patently to be provided within NGP and it necessarily includes the playing fields, which would be a part and parcel of any school, and, therefore, actually the argument about (xii) is academic for those purposes. But, my Lord, if one has to have an argument about (xii), it says, if one reads it all together, development at NGP will provide “for open spaces”—-

MR JUSTICE LEWIS:  I am encouraging you not to repeat this.  You have said it three times and I have told I can see that it is arguable—-

MR BROWN:  Right.  Ah.

MR JUSTICE LEWIS:  — but “for open spaces” has got to be developed at—-

MR BROWN:  Sorry.

MR JUSTICE LEWIS:  — Newcastle Great Park, “for open spaces”, and that will include.

MR BROWN:  I am sorry, my Lord.  I missed the acceptance that it was – Okay, in that case—-

MR JUSTICE LEWIS:  No, I am not saying—–

MR BROWN:  — your Lordship has that point.

MR JUSTICE LEWIS:  I am not saying that I think it is arguable.  I am saying that I can see that—-

MR BROWN:  Yes, right.

MR JUSTICE LEWIS:  — why you say it is arguable.

MR BROWN:  But your Lordship knows what the argument is.


MR BROWN:  I am grateful.

MR JUSTICE LEWIS:  And it is the other part that I am most concerned with.

MR BROWN:  Yes.  What, the “would it have made any difference?”

MR JUSTICE LEWIS:  The s.31(1)(c) one, yes.

MR BROWN:  Okay. Well, my Lord, this comes—-

MR JUSTICE LEWIS:  Or whatever it is.

MR BROWN:  — to what we have described as the distorted approach to the planning balance because what has actually happened in this report is that at each stage where there is a negative impact, the balance exercise which officers have put forward for members to consider is one where the benefits of playing fields, which could be used more frequently, provision for organised sport, mixed use of school/general public, those benefits are placed against the benefits of the use of Cell B1 for casual recreation.  And it is said, “Well, yes, there will be an adverse impact but actually the playing fields are, in crude terms, more useful open space and therefore that outweighs the harm”.  Now, my Lord, we say that that is the wrong question and the wrong balance because, if we are right about NN4, it is not an either/or as far as the playing fields are concerned.  In terms of the development plan, you should have both of those benefits.  The benefit of the pitches is something that ought to have been provided with NN4.  And, therefore, the proper balance, the one which would not have been distorted, would have been to say to members, “What is the difference between what we are being given – offered here and what the development plan requires?”  The difference is the additional 320 houses.  Now, my Lord, if the report had said that, and if at the end of that analysis, it had said, “The benefit of the 320 houses outweighs the harm”, my client may disagree with that assessment, but I would have huge difficulty standing here and telling your Lordship that it was an error of law.

MR JUSTICE LEWIS:  But is it not implicit in 96?

MR BROWN:  My Lord, sorry?

MR JUSTICE LEWIS:  Is it not implicit in para.96?

MR BROWN:  Of the officer’s report?


MR BROWN:  My Lord, can I just turn that up?

MR JUSTICE LEWIS:  B15.  They know that they are going outside what was anticipated.

MR BROWN:  Well, my Lord—-

MR JUSTICE LEWIS:  And the question is—-

MR BROWN:  — let me just turn up 96 and—-

MR JUSTICE LEWIS:  — can they get that without—-

MR BROWN:  — make sure I have got the—-

MR JUSTICE LEWIS:  — doing any harm to anything else?

MR BROWN:  Well, my Lord, what it says there is that that impact will be assessed through the detail of the report but, as I say, when one comes to the assessment, the balance is never put in those terms and, my Lord, that is important.  This is a recently adopted development plan which makes allocations for the housing need in the plan period.  Had the local authority wanted to say, “There is a significant public benefit in these additional houses”, my client would have responded, “Oh, no, there is not. You have got your five year housing land supply.  You have got your allocations for the plan period.  That is what the 880 was meant to secure.  You are looking at housing over and above that for which you have identified a need”.  Now, my Lord, I do not know what members would have done if the point had been put that way, but, my Lord, that comes back to a simplex argument about – or, you know, would the decision—-

MR JUSTICE LEWIS:  Which is slightly different from—-


MR JUSTICE LEWIS:  — the way s.31(c)—-


MR JUSTICE LEWIS:  — and the conduct – well, the outcome of the planning permission, the conduct is not having regard to the fact that the development is on Cell B, which is outside the NGP.

MR BROWN:  Indeed.  But, my Lord, your Lordship’s concern, would the decision have been the same—-


MR BROWN:  — firstly – well, no, would it likely to have been the same.

MR JUSTICE LEWIS:  Is it highly likely that the outcome would not have been substantially different?

MR BROWN:  So, my Lord, the question of the proper balance, never put to members, and the argument which one might have had, had it been put that way – this is the benefit of houses against – in my submission, my Lord, is by far from a foregone conclusion.  First, because, as I say, there is no identified housing need for this additional 320 units and, second, because one would have needed to put this back in the s.38(6) context, which is that there is now a conflict with NN4.  And your starting point is, therefore, fundamentally different.  Now, members—-

MR JUSTICE LEWIS:  I understand that, but I do not want to be difficult and we have not got much time—-


MR JUSTICE LEWIS:  — but that is really saying the conduct complained of should not have occurred and we know that, when we get to 31(1)(c).  If they had done it the way you have said it, there would not be a problem—-

MR BROWN:  Well, my Lord—-

MR JUSTICE LEWIS:  — but they have done it the way you have said it, and the question is would it nonetheless still have been the same—-

MR BROWN:  Well, my Lord—-

MR JUSTICE LEWIS:  — or is it highly likely that the outcome would have been the same?

MR BROWN:  — sometimes it is possible to tell from a report, and from a decision, that the outcome would have been the same because the issue may be addressed in a slightly different way as “the points were before members”, or whatever.  But in this case, and I say that key question, the proper undistorted planning balance, is not a question that is asked or addressed by officers, it is not a question that is asked or addressed by members, and there are serious arguments which might have been raised had it been put in those terms.


MR BROWN:  I mean, there is nothing here which makes clear which way the committee would have gone had it been put that way, had they been told, “Actually what we have got here is not what NN4 requires.  Having gone to the length of producing an NN4, which requires this comprehensive approach, all these things to be provided within the area, why is the problem here?  It is because the developer is seeking an extra 320 houses.  That is not what we intended when we produced our plan.”

MR JUSTICE LEWIS:  And it is just not clear, is it?  It is not obvious from 96 that you are getting more homes there on the site and it is not obvious when you get to 101 that they have shuffled part of it into Cell B1.

MR BROWN:  My Lord, I mean—-

MR JUSTICE LEWIS:  And considered whether Cell B1 would—-

MR BROWN:  — it is obvious that one is getting more homes but what is not obvious – it says, “We will assess the impact of the additional houses through the detail of this report”.  When you get to the detail of the report, my Lord, it is never put in the terms, “This is a consequence of the additional housing”.  It is never – it is never made clear that that is the trade off that members are being asked to accept.

MR JUSTICE LEWIS:  But is it not obvious?  I mean, if you have the 33 per cent, just about, extra houses, there is not any space for playing fields and therefore you are putting them in the green belt.  Well, and it is not saying, “We are putting 300 houses on the green belt”.  They have not spelt it out, but “We have put 300 houses in the park.  As a result, the playing fields are in the green belt.  Will having playing fields in the green belt affect the green belt and then the other things?”  So is that not really – because it is not the houses in the green belt.  It is the houses shifting the playing fields into the green belt.

MR BROWN:  If it was that obvious, why is it that the later parts of the report, when they are carrying out a balancing exercise, do not balance that which your Lordship suggests to me is obvious?  Instead, they balance the different types of open space against each other and say one is – Their starting point in that assessment—-

MR JUSTICE LEWIS:  Because that was going to happen because of the knock on effect of the housing.

MR BROWN:  But, my Lord—-

MR JUSTICE LEWIS:  The housing is not going to be in the green belt.  The playing fields are.  And the question is if you put that bit of the development over into—-

MR BROWN:  But, my Lord, that—-

MR JUSTICE LEWIS:  — Cell B1, does that—-

MR BROWN:  — that – that—-

MR JUSTICE LEWIS:  — upset the housing—-

MR BROWN:  — that part of the analysis, in my submission, demonstrates the extent to which it is not obvious that that is the process that is being gone through because it is a totally false question.  This is not a question of the benefits of a playing field against the benefits of a country park or a local nature conservation area, or whatever it may be.  The plan, which is supposed to be the starting point, the plan says you should have both of those.

MR JUSTICE LEWIS:  Yes, and they are saying, “You cannot have both of those if you have 1200 houses and if you have 1200 houses you are going to have to put the fields somewhere else, and we have put them in somewhere else and we have considered that”.

MR BROWN:  My Lord—-

MR JUSTICE LEWIS:  So I know it is a departure from the policy and I know they could have spelt it out, but I just wonder if it is not implicit.

MR BROWN:  Well, my Lord—-

MR JUSTICE LEWIS:  You say not.

MR BROWN:  I say not.  I am not sure I can give your Lordship—-

MR JUSTICE LEWIS:  No, I mean, that is—-

MR BROWN:  — more reasons than I have.

MR JUSTICE LEWIS:  — your submission. Now, and you say—-

MR BROWN:  But I do—-

MR JUSTICE LEWIS:  — had it been flagged up you would have said, “No, no, no, you do not need to have the extra houses and you do not need to have the overspill”.

MR BROWN:  And, my Lord, had it been flagged up in the context of a departure from the single most important policy, which defines the acceptability of the development in principle.

MR JUSTICE LEWIS:  Yes.  So that is ground 1 then.

MR BROWN:  That is ground 1.

MR JUSTICE LEWIS:  You say the policy is arguably meant to have the open spaces there—-

MR BROWN:  Yes, yes.

MR JUSTICE LEWIS:  — and you cannot be sure because had it been put clearly that the knock on effect was more houses, land shift six inches to the right into open space and green belt, you would have said, “No, no, you do not need to do that”.  Yes.

MR BROWN:  Indeed.  My Lord, in a nutshell, probably a slightly large nutshell, that is ground 1.

              My Lord, ground 2, in relation to green belt.  Can I just start by taking your Lordship to the relevant bit of the NPPF, which your Lordship has got at B3 – well, it starts at B354, and, my Lord, a lot of the case law that we are dealing with on this is looking at the earlier version of the NPPF which talks about paras.89 and 90.


MR BROWN:  Although the wording is not identical, the relevant or the corresponding parts of the current NPPF are 35 on – para.145 and 146.


MR BROWN:  And your Lordship will see 145, which is dealing with the construction of new buildings, generally inappropriate, exceptions are, and there are some exceptions, my Lord, which are always exceptions irrespective of any impact on openness.  So, for example, buildings for agriculture and forestry are an exception.


MR BROWN:  There are others and, in the present case, we are dealing with one of those others.  Paragraph (b):

              “the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries … as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it.”

              So, my Lord, there is – I think the way in which Mr Justice Dove put it in one of the cases was – this is – openness is the gateway through – to appropriateness in this case.  And your Lordship will note the way that it is put, “the provision of appropriate facilities … as long as the facilities preserve the openness”.  And, my Lord, it is implicit within that that one may have a facility which is entirely appropriate but is nonetheless not – sorry, which is an appropriate facility for sport but it is nonetheless not appropriate in green belt terms because it has an impact on openness. That is inherent in the wording.

MR JUSTICE LEWIS:  Yes. Well, you could not build an ice rink but you could have a bowling green, and the question is where do you put the playing fields.

MR BROWN:  Oh, yes, and what goes with the playing fields, my Lord. Absolutely.  And, my Lord, 146 deals with things that are generally not built development.  I show your Lordship simply (a) at the moment because it is where much of the case law comes on mineral extraction, but your Lordship will note that in relation to 146, all of these things are subject to the proviso that they do not conflict with the purposes – they preserve openness and they do not conflict with the purposes of including land within it.


MR BROWN:  My Lord, there has been – and your Lordship may have had prior experience of some of this – a longstanding argument, which has reached the court on numerous occasions, about what “openness” means.

MR JUSTICE LEWIS:  And do we need to go beyond Samuel Smithnow?  Do I need to worry about the cemeteries case and all the others, or do I just need—-

MR BROWN:  My Lord, I hope—-

MR JUSTICE LEWIS:  — to look at Samuel Smith?

MR BROWN:  — we can deal with this on the basis of the Supreme Court in Samuel Smith.  We may need, if we are going to get into some of the points that are taken me about Europaand so on, to go into further case law, but, my Lord, for present purposes I am content to certainly start with Sam Smith.  My Lord, I have set out at para.28 of my skeleton argument the key passages to which I would draw your Lordship’s attention, but if we start—-

MR JUSTICE LEWIS:  Sorry, did we get any – because I marked up another version of Samuel Smithin the black folder that is still – did – (after a pause): Do not worry.  I have this set.  It is just that I have marked another set.

MR BROWN:  Yes.   And, my Lord, this is the Supreme Court in Sam Smith.


MR BROWN:  Yes, okay.  My Lord, para.1, you will note, Lord Carnwath says the short point is whether the planning authority correctly understood the meaning of “openness”, and then he refers to the judgment of Lord Justice Lindblom in the Court of Appeal, who found that visual impact was potentially relevant, potentially significant, but that the council had, in Lord Justice Lindblom’s view, failed to take that into account.

              From para.3 onwards, Lord Carnwath sets out some of the background to the NPPF policy on green belt, noting its longstanding history. Paragraph 4 refers to the earlier—-

MR JUSTICE LEWIS:  We do not need to go through the background.  I did read it all.  You have only got an hour.  You should only have an hour for everybody, so we need to focus more on the specifics that you say—-

MR BROWN:  Right.

MR JUSTICE LEWIS:  — are the—-

MR BROWN:  Indeed.  My Lord, in that case can I take you through, my Lord, to para.22—-


MR BROWN:  — or just before para.22, Lord Carnwath refers to a judgment of his own where he talks about the dangers of over-legalisation—-


MR BROWN:  — and he says that “openness” is a good example of a broad policy concept.  At para.23, “openness”, it is surprising it sparks such controversy. Refers to the authorities on buildings which are, by definition, inappropriate and then goes on to quote, with apparent approval, my Lord, passages from judgments of Lord – Mr Justice Sullivan and Lord Justice Lindblom which underline the fact that what one might regard as the traditional view of “openness”, that it is about being free from built development.  He then goes on in para.24 to say that what you cannot do is go from there the extra mile and say it is wrong in principle to assess openness by reference to a visual impact.  Refers there to the decision of Lord Justice Sales in Turnerand notes that there is no challenge to that as a matter of legal principle. What he then goes on to discuss, my Lord, is given that—-

MR JUSTICE LEWIS:  Well, it is the next paragraph.

MR BROWN:  — there may be—-

MR JUSTICE LEWIS:  It is the next two sentences that they say you have got problems with, in terms of:

              “… it tells one nothing about how visual effects may or may not be taken into account … That is a matter not of legal principle, but of planning judgement …”.

              So whether—-

MR BROWN:  My Lord—-

MR JUSTICE LEWIS:  — visual impact has led to an impact on openness is really not a legal but a planning matter.

MR BROWN:  Indeed, but, my Lord, it is – this is where, in my submission, my Lord, it becomes really important to understand what is and what is not said in Sam Smith, because in Sam Smithyour Lordship will have seen the basic factual backdrop was one in which the planning officers did not think there was an adverse impact in terms of what is called the “spatial” effect—-


MR BROWN:  — the absence of built development—-


MR BROWN:  — but where Sam Smithsaid, “Well, there is, however, a visual element and you did not address that”.  And so Lord Carnwath was concerned with that essential complaint, where the visual element was said to add something over and above what the spatial assessment would have done.  And in his judgment he refers to the – your Lordship will be very familiar with the CreedNZcase on material considerations.


MR BROWN:  There are mandatory ones and there are others which you can take into account but you are not required to.  And Lord Carnwath’s conclusion, in essence, was that in this case the visual component of “openness” was in that possible but not obviously material one, so that it is not an error of law for the decision-maker not to have regard to it. And your Lordship sees that summed up in the discussion at paras.39 and 40, looking at the report in that case. At para.39 he said:

              “Paragraph 90 does not expressly refer to visual impact …, nor in my view is it made so by implication. …

              40. Lindblom LJ criticised the officer’s comment that openness is “commonly” equated with “absence of built development”. I find that a little surprising, since it was very similar to Lindblom LJ’s own observation … It is also consistent with the contrast drawn by the NPPF between openness and “urban sprawl”, … on the one hand … I do not read the officer as saying that visual impact can never be relevant to openness.

              And then, my Lord, in the middle of para.41 there is a reference to the judgment of                Mr Justice Hickinbottom at first instance in Sam Smith:

              “… such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law.”

              So, my Lord, it is quite clear that what Lord Carnwath is saying is that what goes into openness ultimately is a matter of planning judgment. It may or it may not include a visual element but it is not an error of law not to look at the visual component. 

              But, my Lord, what Lord Carnwath does not say is that, while visual impact can add something over and above the spatial effect, what he does not say is that visual impact can detract from the spatial element.  In other words, if you cannot see it, it does not matter.  And, my Lord, that would be extremely important because if that is what Lord Carnwath had intended, it would fundamentally undermine the bedrock of green belt policy, which is that we are not concerned with whether you can see things, we are concerned with built development.  It would enable developers to come along and say, “I am going to plant a decent bund or trees, or whatever, around my development. I am going to put my development in the middle of a forest where no one can see it”, and because there is no visual impact, there is no impact on openness.

MR JUSTICE LEWIS:  Yes, but this is different because this was an open field. It is going to be a playing field with a fence you can see through and a couple of goalposts.

MR BROWN:  Indeed.  My Lord, I understand that as a decision on the plans but, my Lord, the point that I seek to extract from this is that while there is a visual component there, while it is a matter of judgment whether you take that visual component into account, what you cannot do is use the visual component to negate the fact that there is going to be built development or the impact of that built development on openness.  And, in my submission, my Lord, that is the vice – I have identified a number of issues under the green belt heading but the first of them, and there is a reason why it is first, is that, in my submission, the officers have conflated those two issues.  They have looked at – they have said there is a separate discrete issue in relation to—-

MR JUSTICE LEWIS:  But this goes back—-

MR BROWN:  — the visual and the spatial elements—-

MR JUSTICE LEWIS:  — to a different problem. The question then is a simple one.  Can you ever have anything at all on open land which is built and necessarily means that it has a harmful impact on open land, on green belt land?

MR BROWN:  My Lord, I would never say never.  I think that would be extremely dangerous.

MR JUSTICE LEWIS:  Then why is it not – once it is not “never”, once there is not one goalpost or one golf flag, that means it can remain not unchanged. There can be alterations to it but it can still be open.

MR BROWN:  Well, my Lord—-

MR JUSTICE LEWIS:  If that is the case, if there can be physical alterations and something can be there before and you can see something now which you could not see before, but nonetheless it does not interfere with openness.

MR BROWN:  My Lord, preserving does not necessarily require an absence of change. One could, for example, say, “There is a building there at the moment.  I am going to knock that down and I am going to put a comparably sized building over there”.  There is a material change but in terms of the impact on openness, the conclusion may be that there is none, even though there is a new building where previously there was not.

MR JUSTICE LEWIS:  But can you ever have something additional, something that was not there before? You can only ever have the absolute same amount in quantity and height and size and things?

MR BROWN:  Well, my Lord, I do not say you cannot do that but I do say that the judgment has to be made on the proper basis, and the proper basis is one which does not conflate whether you can see it with the spatial impact which it has.  And what I say, in simple terms, about this part of the officer’s report, my Lord, is that having said, on the one hand, there is a spatial element and a visual element, and here is the discussion of the visual element, when you go and look at the spatial element, the spatial element is also – the discussion of it, is also infused with an analysis of visual components.  So they have said there are two separate things “but we are going to take visual into account in both of them”.  And, in my submission, you cannot do that because if you could you end up with the vice, which I say is not what Lord Carnwath has decided in Sam Smith, you end up with the conclusion that if you can screen something sufficiently it does not matter whether it has a spatial effect or not. And that is not—-

MR JUSTICE LEWIS:  Perhaps it is best to show me where because—-

MR BROWN:  Indeed, my Lord.  Can I just find in my skeleton argument where we go?  Yes, my Lord, if we pick up at 11 – 101 is the start of the green belt section.

MR JUSTICE LEWIS:  Yes, I have got that open.  Yes.

MR BROWN:  Paragraph 104 cites paragraphs of the NPPF.  Your Lordship will note, for example, at – yes, 112, my Lord, the report says:

              “In terms of the preservation of openness, consideration of the impact on openness includes its visual and spatial impact.”

              And on the case law, my Lord cannot quarrel with that.

              “The visual impact in terms of its appearance (and how this impacts on openness) and the spatial impact in terms of how much space the development takes up (and how this impacts on openness).”

              And then what one gets in—-

MR JUSTICE LEWIS:  And do you object to the last part:

              “Rather, it means that the effects on openness must not be harmful, … ‘to keep safe from harm’ rather than ‘maintain (a state of things)’.”

              You are happy with that, are you?

MR BROWN:  Well, my Lord, this goes back to the point that I made in answer to your Lordship a moment ago, which is that I readily accept that preserving does not mean keeping it exactly as it is now.  There may be changes.


MR BROWN:  I accept that.  But, my Lord, there are all sorts of changes that may occur, including the example I gave a moment ago, flipping a building—-

MR JUSTICE LEWIS:  But in assessing the desirability of the change you must do it separately, visual and spatial, and you cannot say—-

MR BROWN:  But, my Lord, yes—-

MR JUSTICE LEWIS:  — there is no spatial impact, where there clearly is, by saying it looks all right.  That is your point?

MR BROWN:  Exactly, my Lord.  So, my Lord, can I come back to 113 in a moment, but if one looks down, your Lordship will see from 116 onwards a discussion of the visual impact starts looking at the visual effects on openness and it goes through a range of things. Now, my Lord, there are a number of matters there that my clients would disagree with hugely in terms of whether you are going to be able to see the mesh or no.  Those are judgments.  I am not challenging those and, to the extent that there is that separate discrete section on visual openness, much as I might disagree with it as a matter of fact, it is not a point of law.

MR JUSTICE LEWIS:  Yes, all right.

MR BROWN:  But 113 – 113 is the spatial effect, 113 through to the conclusion in 115, the spatial effect.  And if you look at what it says:

              “The area to be used as pitches is currently predominantly grassland with some planted areas that will require removal. The fencing is the only element of built development that is proposed. The fence will be 1.8m high and made of green wire mesh fixed to metal posts. Similar fencing exists … The fencing, which is not a solid structure, allows views through, is proposed to be green, is in large parts seen against the backdrop of existing and proposed planting, and due to its scale and massing, is not considered to have a harmful spatial effect on the openness of the Green Belt.”

              Now, my Lord, what that has done is it has mixed two separate things.  Yes, there are bits in there that are talking about spatial impact, but there are bits that are patently talking about “what is it going to look like?”, and that is not the test.  That is the test that is dealt with under the visual effect and that is why I say, my Lord, this report conflates the two things.  I do not say it is inappropriate to look at the visual component, but what you cannot do it use it to undercut, undermine or negate the spatial impact, but that is precisely what para.113 does.

              My Lord, the other criticisms that I make also stem largely from 113.  “Similar fencing exists”.  Well, I mean, that is largely irrelevant since it says nothing about the appropriateness of that fencing.  There is a reference to the height of the fence.  No indication here in the discussion of impact on openness of the fact that it is also a kilometre long.  I recognise elsewhere the report makes that point, but this is where the amount of built development is being assessed.  Also, my Lord, no reference here – what is said is that the fencing is the only element of built development that is proposed and, my Lord, as a matter of fact, in our submission, that is not right.  Leaving aside the fact that playing fields are going to have, whether they are goalposts or nets or whatever it is, associated with it, there is also, my Lord, a proposal – a necessary part of the scheme is the diversion of the footpath that runs through the site.

MR JUSTICE LEWIS:  Well, there is the goalposts which some might say, you know, if you have got a playing pitch you are going to have goalposts and a net. There is the diversion of the footpath, and you will come to that in a moment.  I see your reference to a shelter.  What is the shelter?

MR BROWN:  Well, my Lord, the s.106 agreement includes a reference to the possibility of shelters being provided, and I acknowledge that whether or not they are provided there is nothing that says they must be.  Whether or not they will be provided will be decided on another day.  The goalposts, my Lord, were going to have to be provided because you are not going to have a sports pitch without them.

MR JUSTICE LEWIS:  Yes, and you might say that you are expecting that. They would not be in the old days where we put our—-

MR BROWN:  No.  My Lord, I—-

MR JUSTICE LEWIS:  — pullovers on each side—-

MR BROWN:  — there is a – there is a—-

MR JUSTICE LEWIS:  — and pretended it was a rugby post.

MR BROWN:  — disagreement between the defendant and the claimant as to what actually is a given in this case, but I have tried, as best I can, my Lord, to limit the complaints that I have made to what is a given.  So fencing, yes; goalposts, yes.  The reason why we have said the footpath is a given, and I – the defendant’s point is, well, the details of the surfacing of that have yet to be sorted out.

MR JUSTICE LEWIS:  So what do I about the shelter, first of all?  Do I ignore the shelter for today’s purposes because it is not a requirement, it is not something they have got planning permission for and it is only a possibility or—-

MR BROWN:  Well, my Lord, I do not think you can say it has not got permission for it because if the defendant wanted to approve it under reserved matters—-

MR JUSTICE LEWIS:  They could.

MR BROWN:  — they could and, therefore, it is potentially within the permission but not certainly within the permission.

MR JUSTICE LEWIS:  So with reserved matters, do they have to go through the rigmarole again of saying, “Will that shelter interfere with the green belt and the open space?”?

MR BROWN:  My Lord, that is a large part of my client – I am sure the defendant will say they would do but my client’s concern is that that – you know, the response will be, “Well, you know, it is there in the s.106 agreement”, and—-

MR JUSTICE LEWIS:  No, but the question is, as a matter of law, will they have to, before they grant approval for the reserve matters, be satisfied that either it conforms with green belt/open space policy or that there is material planning consideration from departing from it.

MR BROWN:  My Lord, I say they should, yes.

MR JUSTICE LEWIS:  Right, so they would have to.  So that will be – so the shelter will be dealt with at a later stage.

MR BROWN:  And I recognise that is a point that will be taken against me, my Lord, but—-

MR JUSTICE LEWIS:  All right.  So that will be reserved matters stage.  And the footpath, is it just the surfacing?

MR BROWN:  Well, my Lord, what the defendant says is that, well, it could be a grassed path.  My client’s concern—-

MR JUSTICE LEWIS:  No, but the starting point, is it just the surfacing? There is nothing else, no other structure?

MR BROWN:  Otherwise it would simply be the use, my Lord, so, yes, it is—-

MR JUSTICE LEWIS:  Right, and that is an issue of change of use.

MR BROWN:  But if it has to be hard surface—-

MR JUSTICE LEWIS:  So it is the surfacing.

MR BROWN:  — that is built development and, although I note the defendant says that it could be grassed, at the moment that has not been decided.

MR JUSTICE LEWIS:  And would that be dealt with in reserved matters?

MR BROWN:  My Lord, what the plans show is that this is not just a footpath but a cycle path as well.

MR JUSTICE LEWIS:  Well, it will have to be hard.

MR BROWN:  Thank you, my Lord.


MR BROWN:  That is—-

MR JUSTICE LEWIS:  And would that have to be assessed by reference to—-

MR BROWN:  Well, my Lord, on the basis that it would have to be hard and permission has been given for – you know, it is a requirement that there is a cycle path, I say at that stage the developer would be able to say, “I am sorry, but, you know, at that stage that decision has already been made”.

MR JUSTICE LEWIS:  Right, okay.

MR BROWN:  That would necessarily – that should necessarily be taken into account at this point in time.

MR JUSTICE LEWIS:  Right.  So you say it merges visual and spatial matters, and you cannot do that, and you say there are – leaving aside the goalposts – there is a cycle path and possibly hard surfacing, and that also – Well, what do you say about that?  How do you put it?

MR BROWN:  Well, my Lord, I say – They have said the only element of built development is the fencing.  I say that is simply wrong.

MR JUSTICE LEWIS:  Ah, and so it is built department.

MR BROWN:  And if you are looking at it as an absence of built development then – I mean, hardstanding would conventionally be regarded as at least having – as built development which has a potential impact.

MR JUSTICE LEWIS:  Right, so they have failed to have regard to the cycleway and hard surfacing.  Right.


MR JUSTICE LEWIS:  That is what you say in regard to that.  That is not in the report at all.  So that is where the error comes in their assessment of green belt, you say?

MR BROWN:  My Lord, yes.

MR JUSTICE LEWIS:  Great.  (Inaudible) and the cycle path.  Great. That is that.  And that is it, that is your case, I think, is it not?

MR BROWN:  My Lord, yes, it is.  Yes.

MR JUSTICE LEWIS:  Great.  Let us hear what Mr Moules says.  Thank you very much,              Mr Brown.  That is very helpful.  I am sorry to rush you.  I have just got an eye on the time.  Yes, Mr Moules.

MR MOULES:  May it please your Lordship, in terms of ground 1—-


MR MOULES:  — the Council’s case is primarily there was no error in the interpretation policy NN4—-


MR MOULES:  — for the reasons I have set out in my skeleton argument.

MR JUSTICE LEWIS:  But you focus on the word “access”.  If you look at the words of the policy at the leave stage, the park is described in (1), the development of Newcastle Great Park will be required to provide for education provision.  We know that is part of it because that is in 1(i) anyway, but it also says it has to “provide for open spaces”, not “for access” but “for open spaces”, and to include access, it says, is an odd word.  It does not mean physically a gateway.  It means to include access in the sense of to embrace within it. So the open spaces have got to formal/informal recreational areas and those have got to be on open spaces, and those have got to be at Newcastle Great Park.  That is the essence of his point 1.  His point 2 is it is implicit in a school that it has a playing field, and why is that not arguable?

MR MOULES:  My Lord, firstly, I would say in terms of arguability one should be careful about applying a low standard at the leave stage when the point concerns the construction of a short policy.


MR MOULES:  This is a full oral permission hearing with—-

MR JUSTICE LEWIS:  It is an oral permission hearing.

MR MOULES:  It is.  It has been listed—-

MR JUSTICE LEWIS:  It is not the full argument.

MR MOULES:  Well, indeed.  It has been listed for longer than half an hour, the extent to which the arguments are going to be gone into this afternoon, substantive or not, add greatly, so—-

MR JUSTICE LEWIS:  Well, what is the flaw with that argument, if you want to deal with it in full?

MR MOULES:  In terms of his second point, the schools and it is implicit in the schools that that should include the playing pitches, well, on the face of the policy that is wrong because the schools are dealt with in criterion (ii) and the open spaces and the pitches are in criterion (xii), so the policy itself disaggregates the pitches from the schools.

MR JUSTICE LEWIS:  Well, we need to be careful about that because schools – the argument is that schools include playing fields, and there is probably guidance in the educational field that says a school should have a playing field. What (xii) is open spaces, not playing fields.  It is open spaces.  And that is to include formal recreational areas and informal ones, and then that is to include sports, playing pitches and children’s play areas.  So the playing pitches are only part of it. But, anyway, so you say implicit in schools, no—-

MR MOULES:  Indeed, and just to—-

MR JUSTICE LEWIS:  — and the policy separates them out.

MR MOULES:  Just to complete that point, my Lord, the way my learned friend puts his case reveals the area.


MR MOULES:  He says that the schools go within the allocation NN4a.

MR JUSTICE LEWIS:  Well, they do.

MR MOULES:  But he accepts now in his skeleton argument that the playing pitches do not have to go in NN4a so long as they are somewhere within the Great Park.  So if “schools” implied “playing pitches” they would have to go in NN4a as part of the school allocation but he is accepting they do not.  They can go anywhere in the Great Park area.


MR MOULES:  So it is clear, both from his own case and from the words of the policy, that schools and playing pitches are dealt with separately.  The requirement of the policy, in my submission, is straightforward on a plain meaning of the words.  The development at Great Park is required to provide for open spaces.


MR MOULES:  Provision for can be done by accommodating the playing – the open space within the Great Park development area, or as a planning application coming forward within Great Park, making other land outside Great Park available; one or the other.

MR JUSTICE LEWIS:  But then you are not providing open spaces at Newcastle Great Park.

MR MOULES:  But you are not required to.  That is reading words into the policy, my Lord.  It does not say “provide at Great Park”.  It says—-

MR JUSTICE LEWIS:  Well, it does:

                        “Development at Newcastle Great Park will be required to provide …”.

              And then you look at (ii) “For education provision …”, and we know that has got to be at Great Park and not on Cell B1, and you go to (xii), it is the same words, “For open spaces …”, and it tells you what is going to happen on those open spaces.  So what is the difference?

MR MOULES:  My Lord, that is reading – that approach reads in an additional “at”.  Development at Great Park, namely the interested party’s—-


                        “Development at Newcastle Great Park will be required to provide:


                        (ii) For education provision for primary and secondary age school …”.

              No argument about that.  Everybody agrees it has got to be at Great Park.  It has got to be within the Great Park area.  Does it not?

MR MOULES:  I am sorry, my Lord.  Could you repeat the question?


                        “Development at Newcastle Great Park will be required to provide:


                        (ii) For education provision for primary and secondary age …”.

              Everybody accepts that wording means the education provision has got to be at Newcastle Great Park.

MR MOULES:  Well, that, my Lord, flows from para.1 of the policy because the allocation is within NN4a, which is—-


MR MOULES:  — within the Great Park for 880 houses and a school, so one obviously reads (ii) as referring back to the actual allocation within the—-

MR JUSTICE LEWIS:  Okay, but it is interesting that they use the same words. But when you get to (xii):

                        “Development at Newcastle Great Park will be required to provide …”.

              It sounds awfully like “development at”, i.e. not development “associated with” or “to service” or “connected with”, but “at”.

MR MOULES:  All that means, in my submission, is if you are bringing forward a proposal involving land at Great – at Newcastle Great Park, your planning proposal must provide for open space.  Where you do it is a matter for you.  The only test is an evaluative judgment of whether that open space you are providing is sufficiently accessible to the Great Park area, and that was the judgment that the Council reached in this case.  It does not say how the provision must be made.  The “development at Great Park will be required to provide” is identifying the “who”.  Paragraph 7, criterion (xii) is identifying “what”, and the “where” is governed only by the evaluative question of whether it is accessible or not.  And, in my submission, that is entirely different to 7(ii) because the “where” is settled by the actual allocation in para.1.

MR JUSTICE LEWIS:  Okay, so 7(i) will dictate 7(ii) but then—-

MR MOULES:  It is telling you which cell.

MR JUSTICE LEWIS:  — you look at 7(ii), “Development at Newcastle Great Park”, not “Development for Newcastle Great Park”, but “Development at Newcastle Great Park will be required to provide … for open spaces”.

MR MOULES:  That is right and that can be done by way of putting the open space in the Great Park development area of it can be done by putting it outside providing it is reasonably accessible.  And it is my learned friend who needs to read words in to say “providing for” must be done “at or within” Great Park.  That is not the natural and ordinary meaning of those words and that is why his case is unarguable even at the permission stage.

              And in policy terms that makes perfect sense.  There is no obvious reason why the open space or playing pitches should have to be within the Great Park development area. Providing they are sufficiently accessible in the Council’s planning judgment to perform the function required of them, it should not matter where they are.

MR JUSTICE LEWIS:  Well, that is a question for the policy though. I mean, that may be right but then they could have put the policy differently if the policy means something different.

MR MOULES:  In approaching the planning policy, my Lord, one needs to step back and not look at only at the words but also the purpose of the policy, and my submission is there is no purposive reason why the policy should be construed as my learned friend suggests.

MR JUSTICE LEWIS:  There are lots of purposive reasons why they could construe it like that.  They may have wanted, within Great Park, to have schools, houses and playing fields. It would not be anything wrong in them doing that and the question is whether that is what the words mean because either could suit the purpose.

MR MOULES:  My Lord, it is my learned friend who is relying on an implication and where the construction of the policy that I am advancing does not offend any obvious policy consideration, that is a powerful argument for construing the policy in accordance with its ordinary words and resisting the temptation to imply the words explained by Mr Brown.

MR JUSTICE LEWIS:  So if they had not had the words “for open spaces” and simply had “required to provide open spaces”, is it “for” that makes it clear that it can be on or off the Park?

MR MOULES:  It is the combination of “for” and “access”, and the fact that the allocation is for—-

MR JUSTICE LEWIS:  “Access” does not tell you anything about where. Access is all defining what the open spaces must have.  It is a peculiar word to use, “include” and “access”, but that is defining the content of the open spaces.

MR MOULES:  And it is also, my Lord, the fact that the allocation is for education and housing.  It could have been allocated for open space. The fact is it has not been.

MR JUSTICE LEWIS:  But if I do not accept your argument that the “to include access” is relevant to location rather than what is going on in the open space, what takes it out of development within Newcastle Great Park is, what, the word “for”, because it—-

MR MOULES:  “To provide for”, because one can naturally provide for by making other land outside Great Park available.

MR JUSTICE LEWIS:  So 7(ii) means, reading the beginning, if you develop anything at Newcastle Great Park you have got to provide for open spaces somewhere.

MR MOULES:  Subject to them being sufficiently accessible that in the Council’s planning judgment they are accessible to the occupiers of the Great Park.

MR JUSTICE LEWIS:  Well, you do not actually get that from the language, I suppose, but you say it is implicit because that is the whole purpose of having it.

MR MOULES:  Well, indeed.  There would be no need to provide the open space if it was not to serve the new development that is coming forward.  And so, in my submission—-

MR JUSTICE LEWIS:  I am reluctant to decide that.  I know you think it is a full permission hearing and I can be satisfied, but it seems to me it may be excessively legalistic, but there are other things. When they talk about it not being on the site, it looks as if it is expressed differently.  If you look at (iii), for example:

                        “Development at Newcastle Great Park will be required to provide:


              (iii) Access to and provision of local facilities and services including shops and healthcare to serve the needs of the new and existing communities …”.

              It is put differently there.  Access is what has got to be provided.

MR MOULES:  Well, that is grist to my mill, my Lord, because—-

MR JUSTICE LEWIS:  Because you would say—-

MR MOULES:  — again that is an example of how the policy leaves it open either to actually provide the facilities or simply access to them, and what matters, in substance, is whether the residents of the new development of Great Park are able to access.

MR JUSTICE LEWIS:  But they use different words for (xii).  It is not they will provide for access to recreational areas, it is to “provide for open spaces”, and you are reading it as “required to provide access to open spaces”.

MR MOULES:  Yes, well, 7(iii) will encompass existing local facilities and services as well.

MR JUSTICE LEWIS:  Yes, but you are reading (xii) in the same way, are you not; as to provide for access or to provide access to?

MR MOULES:  Yes, my Lord, because later on in criterion (xii) we are told that what matters is access to formal and informal recreation.

MR JUSTICE LEWIS:  No, you are told that what the open spaces must include is access to them.  It has already done it, you see.  I have your argument.  I am not sure I can decide that at a permission stage.

MR MOULES:  So in that case I will move on to the discretion argument.



MR JUSTICE LEWIS:  You do not raise it in your skeleton, do you?

MR MOULES:  There is a discretion argument—-

MR JUSTICE LEWIS:  For green belt.

MR MOULES:  — really in relation to green belt.  In my submission, I am entitled to—-

MR JUSTICE LEWIS:  Oh, you can certainly raise it, yes.

MR MOULES:  Certainly.  Perhaps I thought my submissions on the construction of the policy were stronger than your Lordship, but the simple point is, for the reasons your Lordship has canvassed with Mr Brown, it was obvious for any reader of the officer’s report—-

MR JUSTICE LEWIS:  What about his answer in reply?  I said, “Is it not obvious if you put 400 more houses you are going to shift six inches to the right for the playing fields?”, and he says, “Yes”, but what you have not told people is the price you pay for having the extra houses are all these disbenefits.

MR MOULES:  Well, it is important to look at what the officer’s report said about that.


MR MOULES:  If your Lordship could turn to p.B94.  I should start on B93.


MR MOULES:  B93, para.370.  The way it is put by my learned friend is really it was not a case of weighing the benefits of the playing fields against the benefits of Cell B1 for informal recreation, that it should have been a case of weighing the benefit of houses against the harms that flowed.

MR JUSTICE LEWIS:  I think what he really wants to say is, to weigh having the houses, which is all you need, 880, plus the open fields – the playing fields but without losing the benefits of open space.  That has never been put squarely, he says.

MR MOULES:  So the way the officer’s report dealt with the open spaces, at 370 your Lordship can see five lines from the bottom, it is dealing with the fact that the development on Cell B1 will be on existing open space that is used as a community benefit.  It says:

                        “Whilst these changes are considered to be acceptable …”.

              So this is the loss of Cell B1 in its current use.

              “… acceptable in ecological, landscape and Green Belt terms, they contradict the language used in the exceptions listed in …”.

              That is the UDP policy—-

MR JUSTICE LEWIS:  Open space 1.5, yes.

MR MOULES:  — on open space.

                        “… where proposals … are required to be relevant to the use of the space”.

              So there is a conflict with UDP policy.  So pausing there, this bucketful of harms that the claimant relies on, the Council has judged them not to exist or for the development to be acceptable in ecological, landscape and green belt terms.  There is then a question of the loss of the existing open space. The Council goes on to consider that, and in 373, the last sentence, the judgment was reached:

              “It is not demonstrated that the proposed pitches would remove any sports or recreational opportunities that are not possible on land and routes surrounding the site which will remain available to existing and proposed residents.”

              Therefore, at 376, on the next page, conflict with the UDP open space policy is identified:

              “… however this harm is not considered to be sufficient to refuse planning permission.”

              So the very issues that my learned friend prays in aid have been considered.  The planning judgment has been reached that the ecological, landscape, green belt harm is acceptable and, in terms of open space, the judgment has been reached that there is not the harm that he says should be weighed in the pot.

MR JUSTICE LEWIS:  But his central argument, I think, this is, they could have had all of that, they could have had 880 houses, which is all they need, they could have the playing fields on NGP and they could have had the open space, and that is what he says, and it was never put to them, “You could comply with the policy and get everything.  You could have your cake and you could eat it, although you do not want to do that because you have high levels of obesity”.  Have their football and play with it really.  I mean, that is his central point, is were they told – was it implicit that they knew that they were going outside the plan to get more houses whereas if they had stayed with the plan they could have had everything they wanted, the fields, the houses, the schools, and still had an open space next door, and the Council would have done it.

MR MOULES:  Your Lordship has seen right at the outset, para.2 of the officer’s report—-


MR MOULES:  — it was made clear that the pitches are in the green belt, outside the Great Park area, outside Cell A, the allocation.  Plans were shown at the committee meeting.  There was the discussion in the section on the principle of development at para.86, making clear that the number of houses proposed was in excess of the approximate 880 in the allocation.  There is a discussion in 96 making clear it was a 36 per cent increase.  In my submission, it was obvious.

MR JUSTICE LEWIS:  Implicit that the price they have got to pay for that is to move it—-

MR MOULES:  Precisely.

MR JUSTICE LEWIS:  — into the—-

MR MOULES:  And the harm that would be entailed has been assessed in the report. It has been concluded that there is no – or that at least the ecology consequences, etc., are acceptable, the same for landscape, the same for green belt, and the passages I have shown your Lordship in terms of the UDP open space policy.  They knew what was being proposed, they knew why it was being proposed and they judged it on its merits.

MR JUSTICE LEWIS:  All right, so that is ground 1.

MR MOULES:  In terms of ground 2, my Lord—-

MR JUSTICE LEWIS:  It really now comes down to one paragraph, does it not?

MR MOULES:  Well, it does, my Lord.  I have got two responses.  There is this is para.113 on p.B53.


MR MOULES:  The two points are this. Firstly, read fairly as a whole, para.113 does not conflate the spatial and visual impacts.  What it very clearly is doing is focusing on the massing and scale which are very much spatial issues.  The reference to “visual”, the offending sentence on the claimant’s case is the penultimate one:

                        “The fencing, which is not a solid structure, allows views through …”.

              In my submission, that is simply a description of what is there and it helps to appreciate the scale and mass of the physical structure.  This is not a case of saying, “It does not matter. You cannot see it”.  It is a prior point.  It is looking at what there is to see and the point is, it is a fence with holes in it.

MR JUSTICE LEWIS:  Not a solid fence, yes.

MR MOULES:  Indeed.  And it is absolutely clear, para.112, there is a correct direction that there are spatial and visual aspects to openness.  113 is very much focused on scale and massing, which is, in my submission, correct, and then a separate discussion at 115 of the – sorry, 116, on visual impact.

MR JUSTICE LEWIS:  So it is not a solid structure, you can see through it. It is going to be green. Well, what does that matter, Mr Brown says, to spatial?  It would not matter whether it is bright pink, it is still there and it only becomes relevant that it is green, he will say, if it is because you cannot see it.

MR MOULES:  Well, in my submission, it is important not to be overly legalistic in reading—-


MR MOULES:  — the officer’s report.  This is a description of the physical properties of the fence.  It is perfectly appropriate the members are told what it will look like. One of the issues that was raised in the pre-action correspondence was that unless the Council sufficiently tied down the specification of the fence, they would not even be able to exercise the planning judgment as to whether it would be appropriate or not.  So it is perfectly appropriate that it has been tied down. Members are told physically what is being proposed.  But the question here is, in 113, read fairly and as a whole, is what is the scale and mass, and the conclusion is that it would be proportionate.

MR JUSTICE LEWIS:  And the backdrop is relevant because when you are looking at the massing, and its affect on openness, whether it is standing in the middle of an empty space or whether it is against something that is already there, you say it affects the openness.

MR MOULES:  Exactly, my Lord, yes.

MR JUSTICE LEWIS:  The physical openness, yes.

MR MOULES:  So that is my first point, that read fairly and a whole actually there is not a—-


MR MOULES:  — eliding of the two.  And then, secondly, as a matter of law, the two concepts are not as hermetically sealed as my learned friend suggests.  It is clear from Sam Smiththe valuation of impacts on openness is a broad one of planning judgment and there is nothing in the case law to require this very blinkered approach looking at spatial impacts.

MR JUSTICE LEWIS:  Is there anything in Samuel Smithto contradict that though?  I mean, is there anything to contradict Mr Brown on that?  Is there anything in there to say “and they can overlap”?  Or is it saying always at a high level openness and how they get to openness, visual, spatial or a combination of the two, is a matter of planning judgment for them?  Is there anything as strong as that for your case?

MR MOULES:  I rely, in particular, on the last part of para.25 on p.13 of the judgment, where Lord Carnwath says, “However, it” – he is talking about the approach of Lord Justice Sales (as he was) in Turner, approves but says:

              “However, it tells one nothing about how visual effects may or may not be taken into account in other circumstances. That is a matter not of legal principle, but of planning judgement for the planning authority or the inspector.”

MR JUSTICE LEWIS:  So the application of openness, in all its many manifestations, is really a matter of planning judgment he is saying?

MR MOULES:  That is right, driven by the nature of the development that is being proposed, the particular site-specific factors.

MR JUSTICE LEWIS:  Right, so that is that one then.  And that is it then, is it not?

MR MOULES:  That is it on that aspect of ground 2.  Unless there are any other aspects of ground 2 your Lordship—-

MR JUSTICE LEWIS:  I do not need to trouble you further about ground 2.

MR MOULES:  I am grateful, my Lord.

MR JUSTICE LEWIS:  Mr Banner, anything left for you?

MR BANNER:  My Lord, briefly.


MR BANNER:  I adopt obviously what Mr Moules as said.  On ground 1, just a few points on discretion.

MR JUSTICE LEWIS:  Oh, yes.  Anything more on the words or has it all been done to death?

MR BANNER:  I would like to say some more but in view of the time, and in view of my Lord’s comments, I am going to go straight to discretion.

MR JUSTICE LEWIS:  Okay.  If you have got a killer point on NN4 let me know, but if it is just more argument—-

MR BANNER:  It will probably be a reiteration of what Mr Moules has said, so—-

MR JUSTICE LEWIS:  Ah, okay, then do not worry about it.

MR BANNER:  — I am going to focus straight on discretion if I may.  My Lord, I do say it is obvious, and it was obvious, to members, for example, through 96 and 101, that the decanting of the open space into Cell B1 was a consequence of the increased housing.  It is important to bear in mind, my Lord, as is recorded at para.9 of the officer’s report, members went on a site visit. So not only did they see the plans, such as the one                   Mr Brown showed you moments ago, but they have also seen the site, so it is fanciful to suggest that they were under any illusion as to what was proposed, where and why.

              Secondly, if one asks, well, so what?  Even if, in the context of discretion, even if the decanting into Cell B1 was in breach of NN4, so what?  Well, if it was not inappropriate development of green belt, so if ground 2 fails, there is no green belt consequence.  And then that just leaves the public open space issues.  And can I just go back – I know you were taken to it a moment ago – to para.370 of the report, p.93?


MR BANNER:  Because although the breach of policy OS1.5 is later described as a “harm”, in the sense it is a breach of a policy, it is important to understand why there is a breach.  Third sentence, the beginning of the third line:

              “Policy OS1.5 is relevant to development affecting open space, not solely development which may harm open space. The proposals in this instance clearly affect the open space.”

              And there is then certain criteria for development that does have that effect, but this was not one of them.  So it was a technical breach rather than a breach founded on identified harm.  Then at 371, as Mr Moules has indicated already, there is a finding that the benefits in relation to the new open space outweigh the loss, so even if you could have had both, nonetheless the net effect of what happened on Cell B1 is for the better.

MR JUSTICE LEWIS:  Have I got O1.5 in the bundle?

MR BANNER:  Let me just check.

MR JUSTICE LEWIS:  I would like to—-

MR BANNER:  The core strategy is at p.231.  Yes, you do.  It is at 248 and if we have a quick glance at it, my Lord, you will see what the officer says at 370 is fatal.  Development affecting whether it is for the better, for the worst or, indeed, in some kind of neutral way but has an effect, is only allowed if it falls within certain strictly defined categories, irrespective as to whether it is for the better or for the worse.

MR JUSTICE LEWIS:  So are you saying—-

MR BANNER:  So it is saying it has an effect, therefore OS1.5 is engaged. It does not fall within one of the strict criteria.  Therefore, it is in breach of that policy.  However, 371, nonetheless it is for the better, and 373, nothing meaningful is lost.

MR JUSTICE LEWIS:  Sorry, I am just trying to – Yes, just let me – I cannot quite see why the officer at the moment – it is my fault, I just have not focused on it – why it does not mean the exceptions.

              “the proposal does not strictly accord with any of the exceptions. Despite it being considered to represent facilities for sports … the development will change the general character and landscaping of the open space … they contradict the language used …”.

              Oh, I see, it has got to be required – to be relevant use of the space and playing football is not relevant to the use of the space at the moment. Is that it?

MR BANNER:  I think that is it and it might be said to be a fairly harsh reading of the policy, but that is by the by.

MR JUSTICE LEWIS:  Well, at the moment it is not a playing field for schools. It is just an open – well, not a nature reserve but akin to that.

MR BANNER:  But the critical point for present purposes, in considering discretion and what members would have done had they identified a technical breach of NN4, is that this OS1.5 breach was not considered to be reflective of harm. It was reflective of the constraints of that relatively old policy.  There is then consideration of the more up to date framework, because OS1.5 is from the previous development plan.  The framework provides that where there is a proposal in relation to open space which for an alternative provision, the benefits which outweigh the loss of the pre-existing, i.e., if it is for the better, then it is consistent with the framework.  And then over the page, three and a half lines to the bottom of 371, the framework “with which the development accords”.  So that test that we see at the very end of 93, where the benefits outweigh the loss, that is a test the officer identifies as having been satisfied. Therefore, the recommendation is that the net outcome for Cell B1 is an improvement in open space terms.

MR JUSTICE LEWIS:  And still stays part of the green belt, does it not, even though it is now being used.

MR BANNER:  Yes, absolutely.  Very much so.

MR JUSTICE LEWIS:  It is not being taken out of the green belt.  They cannot—-

MR BANNER:  And still subject to the protections.

MR JUSTICE LEWIS:  They cannot say playing field today, twenty block – storey block of flats tomorrow.

MR BANNER:  Absolutely.  Absolutely, absolutely.  And then at the end of 373, the last sentence:

              “It is not demonstrated that the proposed pitches would remove any sports or recreational opportunities that are not possible … [elsewhere].”

              So if you are asking yourself realistically is it conceivable the members would, if they had identified some technical breach of NN4, the kind that Mr Brown argues for, would they have reached it any differently? If plan two fails I say, no, it is not and, therefore, s.31(1)(c) applies.

              That is all I wanted to say on ground 1, my Lord.  On ground 2, Mr Brown said, well, openness is the gateway to the para.145 framework exceptions.  Can we just go back to the framework very briefly?  It is at page – the relevant bit is at B357—-


MR BANNER:  — and para.145, at the bottom third of 357.  What I say, my Lord, is, yes, openness is the gateway but it has got to be a meaningful gateway.  The context for this is that 145(b) is an exception to the principle that new buildings are inappropriate.  So the premise for 145(b) being engaged at all, is that there is new build form in the green belt, otherwise we would not be in 145 territory at all.  So to calibrate the bar for impact on openness at a level where any meaningful built form or anything apart from something         Mr Brown could not give an example of, he said, “I do not rule out.  Do not say never, say never”, to calibrate the bar that low would render that gateway meaningless.  And that is precisely, my Lord, the point I sought to make at para.12 of my summary grounds.  Can I just remind you what was said?

MR JUSTICE LEWIS:  Yes, I have read those.  Now, where I have put those though?  Oh, here they are.  It is implicit that – I have been asking about whether you can have some change but, by definition—-

MR BANNER:  By definition.

MR JUSTICE LEWIS:  — when you look at some of those—-

MR BANNER:  Because – because we are dealing with buildings.

MR JUSTICE LEWIS:  Well, (1) by definition – by definition, because it only arises where there is building—-


MR JUSTICE LEWIS:  — and, in any event, it is clear – it is all proportion, if you look at (c)—-


MR JUSTICE LEWIS:  — and (d) and (e), limited and so on.

MR BANNER:  Yes.  So if we were doing something that was not an exception then that would be different but here—-

MR JUSTICE LEWIS:  Yes.  And which paragraph of your grounds?

MR BANNER:  So para.12, my Lord.  It is pp.4 and 5, and can I just ask you in half a minute just to recast your eye over the sub-paragraphs of 12 which really make that point, and then I am going to take you to what Sam Smithsays about this.  So it is sub-paragraphs (1) to (5) on pp.4 and 5.

MR JUSTICE LEWIS:  Yes.  (After a pause):  Yes.

MR BANNER:  So then Sam Smithparagraph – authorities tab 1, para.22.


MR BANNER:  The second half.

              “Nor does it imply freedom from any form of development. Paragraph 90 shows that some forms of development, including mineral extraction[and including these kinds of sports facilities], may in principle be appropriate, and compatible with the concept of openness.”

              So the principle, and then you go a little bit further on to p.40, para.28, where one of the passages in Europa, that makes that point, is cited and approved. 

              So there is a built in degree of tolerance in the concept of openness when dealing with potentially exemptible buildings and, of course, whether that degree of tolerance is or is not met is with the values of planning judgment, and not a matter—-

MR JUSTICE LEWIS:  And you say it is capable of accommodating fences and goalposts—-


MR JUSTICE LEWIS:  — and a cycle path?

MR BANNER:  Yes, although the only thing that was fixed were the fences.

MR JUSTICE LEWIS:  And hard surfacing and possibly a shelter.

MR BANNER:  Yes, absolutely.  The only thing that was fixed was the fences as, Mr Moules has explained, there was no substitution of visual for spatial.  The two were dealt with separately.  Plainly it is relevant that the fence had holes in it and that any goalposts would be – would not be a solid object.

MR JUSTICE LEWIS:  Well, the goalpost is a solid object but it is not a very big one.

MR BANNER:  No, but it may not even be development.  The point we make in our summary grounds, if you could just bear with me for one more moment, to go back to the summary grounds, and it is p.14, 35(5), is the things such as goalposts on the pitches are the subject of reserved matters.  The details might require them to be on wheels.


MR BANNER:  Until I got a bit too decrepit—-

MR JUSTICE LEWIS:  So you can move them away.

MR BANNER:  — I used to play Sunday League football and some pitches do have goalposts on wheels, my Lord, so it is not inconceivable that would not be the case.  That is a matter for future consideration at the reserved matters stage.  In relation to the shelters, they are not pursued. In relation to footpath, my Lord, again we say, at the bottom of p.15, we highlight that the relevant provisions in the 106 make clear that the path, subject to detailed design, could be mown as many others are in Newcastle Great Park.  My learned friend said orally that the fact they might be used for cycles means it is inevitable they will be hard surface. That is not how he put it in his skeleton.  At para.38(2) on p.15, it is said that the path is likely to be hard surface. Well, unless he can show it is inevitable it is a non-point because then it is a matter for regulation reserved matters, and there is no evidence before the court to support the proposition that it is inevitable.

MR JUSTICE LEWIS:  How do I know it is cycleway or how did Mr Brown know it is a cycleway?  It is just in the s.106, is it, or—-?

MR BANNER:  It is not in the s.106.  I think he said by reference to a plan.

MR JUSTICE LEWIS:  Oh, it is a plan, is it?


MR JUSTICE LEWIS:  Was it an approved plan?

MR BANNER:  If you need any more than that I will need to take instructions.

MR JUSTICE LEWIS:  Oh, right, okay.  Well, do not worry.  Yes.

MR BANNER:  But, in any event, ultimately, even if, taking the point at its very highest, even if it was inevitable and even if there had been some further to take into account—-

MR JUSTICE LEWIS:  You say it is still only a path.

MR BANNER:  — section 31(1)(c), I mean, this is as minor an impact, bearing in mind there are roads throughout the green belt.

MR JUSTICE LEWIS:  You say it is not even a housemaid’s baby.  Yes.  

MR BANNER:  Exactly.

MR JUSTICE LEWIS:  It is even smaller than that.  Yes, right.

MR BANNER:  My Lord, unless—-

MR JUSTICE LEWIS:  So that is that then on that.

MR BANNER:  — unless I can assist you further—-

MR JUSTICE LEWIS:  No, that is very helpful.

MR BANNER:  — that is all I wish to add.

MR JUSTICE LEWIS:  Thank you very, very much.  Right.  So, Mr Brown, anything in reply?

MR BROWN:  My Lord, I do not know whether I need to say anything to your Lordship about the construction point.

MR JUSTICE LEWIS:  No, not on arguability, no.

MR BROWN:  Thank you.  My Lord, then on discretion, can I sweep up a couple of closely related points?  My learned friend Mr Moules took you to para.370 of the officer’s report.


MR BROWN:  My Lord, there are other paragraphs in similar vein and what he draws your attention to is the fact that at the bottom of it there is a conclusion that the impact is acceptable.  My Lord, my point is that if you look at the earlier parts of that paragraph, the reason why it is acceptable is the balance that has been being carried out, the fact that, you know, the playing/sports pitches are possibly more useful than the casual open space, and that is where – it goes back to my point about the distorted balance – it is asking the wrong balancing question.  It goes to the way your Lordship put it, about cake – having one’s cake and eating it too.  A policy compliant, a scheme which complied with the development plan, would deliver both of those things and that is the point that was never put to members, in my submission.

              My Lord, the same point arises in relation to para.371, to which my learned friend               Mr Banner took your Lordship, and the reference there to the NPPF, and, again, it is put in terms of benefits of one form of open space outweighing another.  It is not, in my submission, an answer to the point that I would seek to make.

              My Lord, in terms of green belt, my learned friend Mr Moules says, “Well, even if one looks at Sam Smith, the two sorts of analysis are not hermetically sealed so that even when one is looking at the spatial element, it is appropriate or permissible to have regard to visual components”.  My Lord, on that, can I simply ask your Lordship to note, and possibly compare, firstly, if one goes to Sam Smithin the Supreme Court, para.23, I took your Lordship to two quotations, the second of them from Lord Justice Lindblom in Lee Valley:

              “The concept of ‘openness’ here means the state of being free … – as distinct from the absence of visual impact.”

              And, my Lord, I said at the time I took your Lordship there that that was implicitly approved.  If one needs confirmation of that, one can see it from para.40—-

MR JUSTICE LEWIS:  Right at the very end, yes.

MR BROWN:  — at the end.  And so, my Lord, I say that what is quite clear is that while one can have a visual component, the spatial element is distinct from and that that, in my submission, clear from the authorities.  My Lord, yes, so that is—-

              In relation to Mr Banner’s points about Europa, my Lord, I have already made, in the submissions I made, just looking at the wording of the NPPF, the point that one can have facilities that are appropriate for sport, and while I accept that, of course, the presupposes there can be some which would be capable of meeting the test of no impact on openness, otherwise that provision would be pointless, the converse is also true that just because something is appropriate for sport it does not mean that it is therefore automatically acceptable. There is still that openness test that has to be assessed. And the way in which Mr Banner put it, is that when asking the question you have to view it through the lens that some kind of facility would be appropriate.  My Lord, if that was the assessment one saw in the report, I might struggle to be here, but the point I make is that it is not.  And, in particular, my Lord, what is – what one does not see in the report – one knows that the fencing goes around the playing fields, but what there is not is any discussion or analysis of the reason why that fencing is necessary and certainly, in terms of documents, I think we are in the original application bundle, there was a clear indication that the reason for the fencing had more to do with the fact that it was for the school than it was for the public open space.

MR JUSTICE LEWIS:  Well, as I understand it, they accept that not everyone is going to be able to use it.  The school will use it in school hours and—-


MR JUSTICE LEWIS:  — the community will use it holidays and evenings.

MR BROWN:  But if it had just been for public use, my Lord, the fence may not have been necessary.


MR BROWN:  In other words, if one is going back to the question, is this a facility which is associated with the use for open space or recreation, there would have been a strongly arguable point that actually it is necessary in conjunction with the use of educational purposes and not that.

              My Lord, those are the short points that I make, unless your Lordship has any questions?

MR JUSTICE LEWIS:  No.  I am extremely grateful to you all.

(See separate transcript for judgment)

MR BROWN:  My Lord, I am grateful for that and, although my client cannot be here today, I know when she reads the judgment and the notes of it, she will be grateful for the care with which you have gone through the points we have raised.

MR JUSTICE LEWIS:  Thank you very much.

MR BROWN:  My Lord, unless there is some other application against me at the moment, which I do not think is the case in costs terms – Is there?  No.

MR JUSTICE LEWIS:  Do I not need to sort out, I cannot remember, Mrs Justice Laing’s order?

MR BROWN:  My Lord, no.  There are the costs in relation to—-

MR JUSTICE LEWIS:  The acknowledgement of service.

MR BROWN:  — the order below.


MR BROWN:  Your Lordship will have seen that when one adds both the interested party and the—-

MR JUSTICE LEWIS:  Well, I have got the order to hand.

MR BROWN:  There is a total of around £36,000.  My Lord, there is an initial point which I am told is agreed, which is that both those figures actually include VAT when they should not do, but—-

MR JUSTICE LEWIS:  Can I just find the order of Laing J, so I can see what she ordered?  I think that was technically meaning her order.  I think I have got it.

MR BROWN:  My Lord, I have certainly got a copy of the order.

MR JUSTICE LEWIS:  I have got it.  No, I have got it here.  What did she do – Oh, the costs of preparing acknowledgment of service is paid by the claimant to the defendant in the sum of £17,000, gosh, and the interested party in the sum of £19,000, unless within fourteen days the claimant notifies the court that she objects to paying costs, and you did notify the court, did you? Oh, no, and then it says, “Where the claimant seeks consideration of costs, it should be dealt with on that occasion”.  Right. So your objections are?

MR BROWN:  Well, my Lord, in essence that these – both sums are, leaving aside the VAT which we can sort out, but both sums are, in my submission, manifestly excessive.  My Lord, in my skeleton I have referred your Lordship to the Ewingdecision, which is now of some age, I know, but your Lordship—-


MR BROWN:  — will be familiar with it.


MR BROWN:  It makes the point that particularly when one is dealing with environmental cases, one needs to be careful to ensure that the costs awarded at this stage do not prevent claims being brought.  It makes the point that there is a distinction within the rules, albeit one which is often overlooked by defendants and interested parties, between truly summary grounds which should be just highlighting the short knock-out points, and where the judgment makes reference to responses of two/three pages, which should be adequate for that purpose, and the more detailed grounds.

              So, my Lord, I rely in general on the principles in Ewing. My Lord, I add it to another point, which would have arisen rather differently had your Lordship granted permission.  There is no dispute that this is an Aarhus claim, and indeed we flagged it as that originally. We could have, and in retrospective possibly, with the benefit of hindsight, should have but did not, seek the costs protection at the time the claim was lodged.  And your Lordship has seen the reasons why that was not done.

MR JUSTICE LEWIS:  You could not put in the statement of – No, why was it?

MR BROWN:  Well, my Lord, there is now a statement of means today but the point is that at that stage the claimant was crowd funding amongst others with Save Newcastle.

MR JUSTICE LEWIS:  Yes, because you did say it was an Aarhus convention but you were not limiting the costs and you said you were crowd funding.  Do I know how much the crowd funding—-

MR BROWN:  Well, my Lord, we have raised, I think it is just under £5,000, and while I cannot say that there would not be any more ever to come, I think if we have not got it by now we are not optimistic that we would.  And had we sought that protection at that stage, I know we did not and that is the point that will be taken if we take it, but had we sought against it at that point we would have fallen primarily or prima facie within entitlement to it, in which case one would have had a very different costs order.  Had this gone forward today, I would have sought that costs protection.  I do not know whether either my friends would have objected to it but I have not seen anything from either of them to indicate that they would.  And, my Lord, bearing that in mind, and given the reasons for not having sought the protection at the early stage, I do say, if one reads that together with Ewingand what it says about the importance of not stifling claims, it cements my argument that the costs award here, which may well be typical of a sort of commercial case or something else, but is not appropriate in an environmental case such as this.

MR JUSTICE LEWIS:  I have two further points.  (1) where have we got to in interested parties now?  They get their acknowledgement of service, do they not?

MR BROWN:  Well, my Lord, under Mount Cookprinciples, in principle they are entitled to—-

MR JUSTICE LEWIS:  Yes, well, it was not dealing with IPs there oddly enough.

MR BROWN:  No, and Ewing—-

MR JUSTICE LEWIS:  But later cases says—-

MR BROWN:  — postdates Mount Cook—-

MR JUSTICE LEWIS:  — they can, yes.

MR BROWN:  — and says, “Well, you know, without detracting from that, one should – you know, one still needs to make sure that the awards are reasonable within the overall—-

MR JUSTICE LEWIS:  And in terms of the costs of preparing the acknowledgement of service, do I take into account the fact that you effectively won on the first ground, at the leave stage, and that I found it was arguable, and, from recollection, but I will be told if I am wrong, they did not at that stage, in their acknowledgement of service grounds, raise discretion in relation to that, although they did in relation to the green belt, but I cannot remember now when they did that.

MR BROWN:  Yes.  Well, my Lord—-

MR JUSTICE LEWIS:  But am I wrong to think to take that into account?

MR BROWN:  — in my submission, I appreciate your Lordship has – it is not as if your Lordship said I am right on ground 1.

MR JUSTICE LEWIS:  No, no, but—-

MR BROWN:  But nonetheless—–

MR JUSTICE LEWIS:  — it was arguable on ground 1.

MR BROWN:  — it was arguable.  There is a point which was not hopeless.  I know my learned friend Mr Moules says, “Well, you have now only got two quite narrow grounds which are, if one looks, for example, to the original pre-action protocol letter”, and I say, well, that is the whole point about the process.


MR BROWN:  We have very responsibly looked at the response to the pre-action protocol letter.

MR JUSTICE LEWIS:  But it does not matter because they are only getting their costs of the acknowledgement of service.

MR BROWN:  My Lord—-

MR JUSTICE LEWIS:  They only get their costs of the acknowledgement of service so the fact that there were more grounds in the acknowledgment – in the pre-action protocol is irrelevant.

MR BROWN:  Yes.  And, my Lord, it would be fair to say, the points that I have raised today are, in my submission, in the pre-action protocol but they have been recast, but they are – you know, certainly in terms of the green belt, those arguments are there. I hope I have put them more succinctly or Ms Olley and I have pleaded them more succinctly, and we have certainly jettisoned a lot along the way, but that is not something for which we should be criticised, indeed, and the fact that we have not burdened the court with out arguments stands to the claimant’s credit.

MR JUSTICE LEWIS:  Right. Well, let me just hear what Mr Moules has to say first.

MR MOULES:  Thank you, my Lord.  Just in relation to discretion, if I could ask your Lordship to turn to the Council’s summary grounds, paras.50 and 51.

MR JUSTICE LEWIS:  Yes, I have lost those now.  I have got them somewhere because I have read them.  (After a pause): I have seen them.  Oh, defendant’s summary grounds of defence. Yes.  Paragraph? 

MR MOULES:  It is 50 and 51 on pp.16 and 17.  So the way discretion was pleaded was that if any unlawfulness is found by the court reliance is placed on s.31(3C).

MR JUSTICE LEWIS:  Oh, well, I have got that wrong then.  Yes, it was there.  Why do I – oh, because you did not put it in the skeleton, is it?

MR MOULES:  I did not put it in the skeleton, no.


MR MOULES:  And then in relation to 51, it was pleaded that if any error in relation to ground 2 is not made out, then it is highly likely that the overall conclusion would have been the same.

MR JUSTICE LEWIS:  So that was in.  Okay, so it is my fault.

MR MOULES:  Which reflects your Lordship’s judgment.  In relation to Aarhus, in fairness I should draw the court’s attention to bundle p.337, which is the Council’s reply to the first pre-action letter that was sent.  So this is the Council’s response of 20 April 2018 and the  Council’s position then, which reflects its position now, is that it accepts that this would an Aarhus claim, but the point was made over a year and a half ago that we reserve the right to talk about the caps when we have seen the financial schedule.

MR JUSTICE LEWIS:  So they would only have been able to get £5,000 each from you?  Or was it £10,000 each?

MR MOULES:  Well, it would have been a global cap of £5,000, shared—-

MR JUSTICE LEWIS:  A global cap.

MR MOULES:  — shared amongst the parties.

MR JUSTICE LEWIS:  Shared between you.

MR MOULES:  Subject to being varied at the court’s discretion, having heard submissions on the schedule of financial resources.

MR JUSTICE LEWIS:  Well, what do I do about that then because should I not follow the Aarhus limits in the circumstances?

MR MOULES:  Well, in my submission, no, my Lord, because the rules provide for a cap which claimants have to—-

MR JUSTICE LEWIS:  And they said that they did not need it.

MR MOULES:  — opt into, and a decision was taken to tick the box on the claim form disclaiming reliance on Aarhus in circumstances where the Council had already written saying it did not dispute that this was an Aarhus claim. All we needed to see was the schedule of financial resources.  If the obstacle to ticking the box on the claim form was, “We are not yet in a position to put in our schedule”—-

MR JUSTICE LEWIS:  So the reason why they could not claim it is not because they were making some sort of error, but they could not put in the financial resources information because they were crowd funding and they might be well above the figure.

MR MOULES:  That is right.  They were crowd funding and uncertain as to how much they were going to raise.  They could at that point have asked their application to be stayed or explained the difficulty they faced.

MR JUSTICE LEWIS:  Because, oddly, they have only got to where they would have got to under the cap.

MR MOULES:  And your Lordship will—-

MR JUSTICE LEWIS:  But you say that does not matter.  That is their own fault.

MR MOULES:  — note p.83 of the bundle, it is section 6 of the claim form, the claimant has written, “It is not sought for the costs”—-

MR JUSTICE LEWIS:  No, exactly.  I saw that.

MR MOULES:  — “to apply”.

MR JUSTICE LEWIS:  So they took the decision and they must therefore live with the consequences.

MR MOULES:  Indeed, my Lord.


MR MOULES:  So I do object to the Aarhus cap being applied retrospectively but that does not detract from the fact your Lordship has got to apply a best summary assessment now.

MR JUSTICE LEWIS:  Yes. Now, I have forgotten how much you want.  You want £17,238.  That looks an awful lot for a summary grounds, especially since about a third of it you have not succeeded in persuading me there was a knock out point. So should I not be scaling that down to about £11,000 or £12,000 on any analysis?

MR MOULES:  My Lord, I can assist you with that.  We have stripped out some of the costs that we are not entitled to from the schedule that was filed.


MR MOULES:  So it did include VAT and it did include some costs associated with the second pre-action protocol letter.  So if I could just give your Lordship the figures that we do now claim?


MR MOULES:  Fees for Matthew Reed QC, £4,800.  Fees for my drafting, £2,400.  Solicitors’ costs, a total of £4,376.17.  Officers’ costs, £700.  Giving a total of £12,276.17.  And, in my submission, that global total is reasonable and proportionate for a significant planning case of this nature.

MR JUSTICE LEWIS:  All right.  So you are looking at around £12,200 and I decide how reasonable that is?  Well, you have got £500 off without even doing anything. Right, okay.  That is what you ask.

MR MOULES:  That is what I am asking for, my Lord, yes.

MR JUSTICE LEWIS:  Right.  So, Mr Banner, how much do you want?  Are you still wanting £19,000?

MR BANNER:  So my costs were £19,402 and I accept that has to be adjusted for VAT.  I am afraid my mental arithmetic is not good enough for me to do it off the top of my head.


MR BANNER:  Can I just address you on the—-

MR JUSTICE LEWIS:  Well, it comes down to, without VAT – I take it that Mr Moules’ fees were without VAT, the £12,200.  Yes. 


MR JUSTICE LEWIS:  So it is £16,202.  £16,000 for you without VAT, looking at your schedule.  Did you include things you should not have included?

MR BANNER:  We accept that we would not get the VAT.  You would not get the VAT – sorry, the VAT should not have been included.

MR JUSTICE LEWIS:  Should not have?

MR BANNER:  Should not and should be discounted.

MR JUSTICE LEWIS:  So it should be £16,000 and not £19,000.

MR BANNER:  Yes, that is correct.

MR JUSTICE LEWIS:  All right.  And do you – has it – because you could only get the acknowledgement of service.  You have not accidentally included everything you have ever done in relation to this case, have you?

MR BANNER:  No.  No, that is it.

MR JUSTICE LEWIS:  So is pure—-

MR BANNER:  That is it.

MR JUSTICE LEWIS:  £16,000.  Right.

MR BANNER:  And can I address you – what I say, my Lord, is I adopt what Mr Moules says on Aarhus.


MR BANNER:  They disavowed it so it does not apply.  There is no dispute as to the principle, see Mount Cook. My learned friend does not say in his renewal grounds or his skeleton that any items were not reasonably incurred, so we are left with is that sum proportionate?  And I do want to make – I am conscious of the time – five very brief points on that.


MR BANNER:  Firstly, this is a very big development indeed.  It is at the upper end of the kinds of residential development this court tends to hear.  To give you a feel for the commercial and public importance, the s.106 contributions alone, the financial ones alone, were over £15 million.


MR BANNER:  And you see that in the officer’s report.  The decision was the end product of a very lengthy decision-making process over a period of years.  The application went in in 2017.  The complexity is clear from the decision from the officer report.  It was the culmination of a huge amount of work and expense.  The grounds went significantly beyond the pre-action protocol grounds.

MR JUSTICE LEWIS:  I cannot see how that might be relevant because it is—-

MR BANNER:  Well, can I show you why that is relevant.  I will show you why that is relevant, my Lord.

MR JUSTICE LEWIS:  No, no, I am sure it does.  I am sure it does but so what, because what you get is the costs of the acknowledgement of service?

MR BANNER:  Well, I will tell you.  If I can take you to Ewing, which is the case my learned friend relies upon in the context of costs, because the relevance of it is clear from that.  It is tab 6 of the authorities, and page – well, unfortunately it is not paginated, but it is the penultimate leaf, three pages from the back, para.43.

MR JUSTICE LEWIS:  Sorry, are you in—-

MR BANNER:  In Ewing.


MR BANNER:  It should be tab 6.

MR JUSTICE LEWIS:  It is not in tab 6 unless it is the additional bundle.

MR BANNER:  Yes, it may be that it is the – I have filed mine together actually. It is tab 6 of the most recent bundle of authorities.  It is the old style judgment in—-

MR JUSTICE LEWIS:  So paragraph?

MR BANNER:  Paragraph 43, and you see about two-thirds of the way down, in the context of what is proportionate for AOS costs, it says:

              “If a party’s position is sufficiently apparent from the Protocol response, it may be appropriate simply to refer to that…”.

              Well, in circumstances where the case has not narrowed but broadened, that is not enough.

MR JUSTICE LEWIS:  But you still only get the costs – the fact that it was already in the protocol would normally mean you would get lower costs.

MR BANNER:  Yes, but—-

MR JUSTICE LEWIS:  But here you would not get more, you would just get the costs of the acknowledgement of service, which is the £16,000.

MR BANNER:  Understood but it is still relevant in understanding that this is outside the norm partly because—-


MR BANNER:  — we were not able to rely upon our AOS costs.


MR BANNER:  Also, my Lord—-

MR JUSTICE LEWIS:  So what may look like a surprising figure is not such a surprising figure?

MR BANNER:  Indeed.  Also para.44 of Ewing, the same judgment, three lines from the bottom, there is reference to the paradigm two page of summary grounds.  Well, this, on any view, is not the kind of case where two pages would have been sufficient.


MR BANNER:  So, therefore, we are outside the paradigm.  Also on proportionality, I say it is relevant that the case we had to meet had the names at the bottom of a senior QC and a senior junior.  In gauging proportionality, it was relevant to have regard to that.

MR JUSTICE LEWIS:  I would not let that influence you.


MR JUSTICE LEWIS:  They are no better than the juniors very often! (Laughter) Some might say worse!

MR BANNER:  I will pass that comment.  But, my Lord, I do say—-

MR JUSTICE LEWIS:  I did not notice Mr Moules being significantly less valuable than anyone in the court.

MR BROWN:  I think I heard the comment.

MR JUSTICE LEWIS:  Yes.  Anyway.

MR BANNER:  But I do say, my Lord, that in those circumstances, applying rigour to this question, the only question of dispute can be, is this proportionate, and I say that in this context it is.

MR JUSTICE LEWIS:  Well, proportionate and the fact that you have not knocked out ground 1.

MR BANNER:  Well, if you – What I would say to that is, we are not seeking the hearing costs and the summary grounds were sufficient for the purposes of the paper stage, and it is the paper stage we claim costs of.  If you are minded to make a discount—-

MR JUSTICE LEWIS:  That cannot be right because then you were allowed to reconsider           and—-

MR BANNER:  We did take the point on discretion, like Mr Moules, and we have won on ground 1.

MR JUSTICE LEWIS:  Oh, did you?

MR BANNER:  So if you want to see it, it is our acknowledgement of service – sorry.

MR JUSTICE LEWIS:  If it is in your acknowledgement of service.  I had better look but, I mean, if you tell me it is there, I mean—-

MR BANNER:  Yes, we did.

MR JUSTICE LEWIS:  — I believe you.

MR BANNER:  Page 16, para.38.  We made a general point and then I made a further specific point on ground 2, but the general s.31(3C) is at para.38 on p.16.  If you were going to make a discount to reflect that and VAT, I would suggest the sum should still be, at minimum, in the order of £10,000 given the commercial importance and all the other factors I have mentioned.  Unless I can assist you further, my Lord, that is all I have to say on costs.

MR JUSTICE LEWIS:  No, that is very, very helpful.  Thank you very much.

(See separate transcript for judgment)

MR JUSTICE LEWIS:  Okay.  Does that cover everything?

MR BROWN:  My Lord, I am very grateful, particularly for the amount of time that your Lordship has taken over it.

MR JUSTICE LEWIS:  Well, no, I am very grateful to you for all your submissions and I am grateful to the shorthand writer and the associate who inevitably almost every day these days stay well beyond 4.30 and never get any thanks for it.  But we are grateful to them for their work.

MR BROWN:  Indeed.

MR JUSTICE LEWIS:  Thank you all very much for your patience.

(4.45 p.m.)


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Royal Courts of Justice

Tuesday, 11 February 2020



B E T W E E N:

The Queen on the application of


                                             (on behalf of SAVE NEWCASTLE WILDLIFE)                              Claimant

–  and  –

                                                        NEWCASTLE CITY COUNCIL                                        Defendant

–  and  –

                                             NEWCASTLE GREAT PARK CONSORTIUM                     Interested Party


MR P. BROWN QC(instructed by Temple Bright LLP) appeared on behalf of the Claimant.

MR R. MOULES(instructed by Legal Services, Newcastle City Council) appeared on behalf of the Defendant.

MR C. BANNER QC(instructed by Walker Morris LLP) appeared on behalf of the Interested Party.




  1. This is a renewed application for permission for judicial review of a decision of the defendant, Newcastle City Council, granting outline planning permission for, amongst other things, 1200 residential dwellings and educational provision for primary and secondary schools on an area referred to as Cell A, forming part of Newcastle Great Park, and for playing fields at an area outside Newcastle Great Park, known as Cell B1.
  • The background is that there is a development plan for Newcastle Upon Tyne and Gateshead.  Part of that development plan includes the Core Strategy and Urban Core Plan for Gateshead and Newcastle Upon Tyne 2010-2030, headed “Planning for the future”.  That has a particular policy, policy NN4, Newcastle Great Park, which, as its name implies, deals with development at Newcastle Great Park.
  • Point 1 of that policy defines and says in part what areas are allocated for in the following terms:

“Newcastle Great Park comprises:

i. the existing Great Park development area NN4d, this includes site NN4a which is now allocated for approximately 880 new homes by 2030 and education provision for both primary and secondary aged children by 2021, and

ii. the Neighbourhood Growth Area sites NN4b and NN4c which are allocated for approximately 600 new homes by 2030.”

  • Paragraph 7 has twelve further criteria relating to development at Newcastle Great Park.  I read ones that may be material together with the opening words:

“Development at Newcastle Great Park will be required to provide:

i. A range of sizes, types and tenures of housing to include a minimum of 75% of family homes;

ii. For education provision for primary and secondary age school children to serve the needs of the new and existing communities;

iii. Access to and provision of local facilities and services including shops and healthcare to serve the needs of the new and existing communities at Great Park Centre;

xii. For open spaces to include access to formal and informal recreational areas including sports, playing pitches and children’s play areas.”

  • The defendant’s officers prepared a report, which went to the Planning Committee on 14 December 2018.  There is a description of the site at para.2, which notes that part of the application site forms part of the Newcastle Great Park, comprising of what is called Cell A. It says: 

“Cell B1 forms part of the application site but is not allocated in the Core Strategy as part of Newcastle Great Park.”

            It notes that there had been site visits by members of the Planning Committee on various dates in October and November 2017 and January 2018.

  • The proposal is defined in terms at para.15. It sets out the use and the number of hectares involved.  For residential use there will be 35 hectares; for educational use, 6 hectares, for sports pitches there would be 5.85 hectares.  The report sets out the main issues at para.84.  These include the principle of development and green belt. At para.85 and following, they deal with the principle of development.  It notes at para.86 that policy NN4a allocates approximately 880 homes for Cell A, and education provision for primary and secondary age children.  It notes that the application, however, proposes up to 1200 dwellings.  It notes that the application includes playing fields on a site known as Cell B1 and that site was not within the allocated Newcastle Great Park area and was not covered by policy NN4.  Cell B1 is allocated green belt land.
  • Paragraph 88 notes that policy NN4 contains a number of requirements on what development at NGP will need to provide.  It notes that some are dealt with in that section of the report and some are dealt with elsewhere in the report. Para 91 deals with housing; para 92 deals with education.  Paragraph 96 returns again to the number of dwellings and notes that the number of dwellings in the application is 1200, approximately 36 per cent above that identified as the approximate number in the development plan. The report notes that that is a significant rise in numbers but that the principle of such development was not necessarily unacceptable provided a sustainable form of development in accordance with the relevant development plan and policies ensues.  It notes that policy NN4 does not place a limit on the number of dwellings as such, but states that it is allocated for “approximately 880”.  It states that the impact of the additional housing numbers will be assessed elsewhere in the report.
  • Paragraphs 101 onwards deal with green belt.  It starts by reminding the reader that part of the application site is located in the green belt.  That was the land which is referred to as Cell B1, on which the playing fields and associated fencing are proposed.  It reminds the reader of what the National Planning Policy Framework (the “NPPF”) states is the fundamental aim of green belt policy; that is to prevent urban sprawl by keeping land permanently open and its essential characteristics are openness and permanence.  At para.105 it refers to the NPPF paragraphs that deal with open belt. At para.107 it notes that there are three elements of the development proposed in the green belt; change of use of land to playing pitches, erection of fencing around the pitches and works to create a level playing surface.  It deals with change of use.  It deals with the soil amounts.  No complaint has been made of those.  It also deals with fencing.  At para.110 it notes that the pitches would be fenced to ensure the safety and security of all users, including schoolchildren, and to ensure the overall maintenance and management of the pitches.  It is stated that the fencing is considered to be proportionate in scale and nature to the proposed use of the land and is considered appropriate for an outdoor sports and recreation area.  It refers to the NPPF, which states that the provision of appropriate facilities for outdoor sport are exceptions to the prohibition on the construction of new buildings, which is generally inappropriate within green belt, as long as the facilities preserve the openness of the green belt and do not conflict with the purpose of the land within it.
  • Paragraph 112 notes that, in terms of the preservation of openness, there needs to be a consideration of the impact on visual and spatial elements.  It goes on to say that the policy does not require that the openness of the green belt be left entirely unchanged.  There can be changes provided that the effects on openness are not harmful.  It notes that it is established that the concept of preserving the green belt cannot be synonymous with no physical change.  Paragraph 113 deals with spatial effect, and I shall return to that.  Paragraph 117 and following deals with visual impact in terms of how the fencing would be seen from various locations.  
  1. Paragraph 124 notes that Cell B1 would remain green belt and open space.  The built development proposed included the fencing and, given the design and siting of the fencing and the proposed earthworks, this would not constitute sprawl or an urban area being expanded and it will fulfil the green belt purpose of checking the unrestricted sprawl of built up areas, and it says at 125 that, save for the proposed fencing, the land would remain open and can serve the purpose of preventing neighbouring towns from merging.
  1. At paragraph 343 and following the officer’s report deals with open spaces.  At paragraph 370 there is consideration of a particular policy on open space, Open Space Policy OS1.5. It noted that that policy related to development affecting open space, not solely development which harmed open space.  It noted that this development was not strictly within the exceptions listed in OS1.5 because the proposals were for recreational purposes and were not relevant to the use of the space, that being a judgment that it formed.  At paragraph 373, it recognised that Newcastle unfortunately has one of the highest levels of obesity in the country and that physical activity can provide significant health benefits.  It expressed a view that the use of the site for playing pitches would offer wide benefits to the community over and above its use as a general open space.  It deals with that and concludes that it is not demonstrated that the proposed pitches would remove any sports or recreational opportunities and routes surrounding the site will remain available to existing and proposed residents.
  1. Turning then to the grounds and issues in the case. There are two grounds.  First, it is said that members were not properly informed that there would be a conflict between the proposed development and the development plan, in particular, policy NN4.  Secondly, it is said that the advice was flawed in relation to the green belt.  In particular it is said that there was a conflation of consideration of visual impact with spatial impact.  Thirdly, the defendant and the interested party raise the issue that even if it was arguable that there was an error of law then, as a matter of discretion, this court is required to refuse permission because they say it is highly likely that the outcome for the applicant would not have been substantially different, drawing my attention to s.31(3C) of the Senior Courts Act 1981.
  1. Dealing with ground 1 and the interpretation of NN4, that arises in this way.  Mr Brown QC, on behalf of the claimant, says it is arguable that policy NN4 requires the provision of the open spaces which will encompass the playing fields to be within Newcastle Great Park.  The proposals, however, put them outside the Great Park.  Mr Brown says that there was no acknowledgement of the fact that the applicant for planning permission failed to provide the required sports pitches within the park or that that arose because of the fact that there is a higher number of dwellings than anticipated by the policy. He submitted that there was a failure to realise and to address the question that had there been a proposed development which was complying with the policy, there would have been the houses, the schools and the playing fields within the Newcastle Great Park area and also would leave unaffected the green belt area comprised within the land known as Cell B1.
  1. Dealing with the arguments of construction, Mr Brown says simply, but nonetheless forcefully for that, that his interpretation follows from a natural reading of the words of policy NN4 itself. Paragraph 7 says:

“Development at Newcastle Great Park will be required to provide:

xii. For open spaces to include access to formal and informal recreational areas including sports, playing pitches and children’s play areas.”

            He says that, read fairly, that means that the development at the Park, i.e. within the Park, must provide for open spaces. The natural implication is that those open spaces must be in the Park. Within the open spaces there has to be informal and formal recreational areas, but the wording and the gist of the policy is that all of that is to be concentrated within the area of Newcastle Great Park, not partly in or at Newcastle Great Park and partly outside Newcastle Great Park and in the green belt.  By way of example of how the wording supports that, he points out that the development at Newcastle Great Park is required to provide “for open spaces”, not “for access to open spaces”.  One contrasts that with other provisions, such as 7(iii).

  1. His second point is that the schools do need to be on the site, as appears from para.1(i) of the policy, which notes that site NN4a is allocated for homes and education provision for primary and secondary aged schoolchildren He submitted that it is implicit in that that the school playing fields should be part of the school area, not part of the green belt.
  1. The defendant says that is far too simplistic a reading of the policy.  If you look at it, there has to be development at Newcastle Great Park which is required to provide “for open spaces”, which will include access to formal and informal recreational areas.  They say there is no reason, as a matter of language, and it will be consistent with the purpose underlying the policy, for the development proposals at Great Park to provide for open spaces, albeit the open spaces are outside of the area of Newcastle Great Park, providing the Council are satisfied that there is suitable access.
  1. At this stage I am simply dealing with the question as to whether or not the claimant’s interpretation of the policy is arguable, that is, whether it can be argued that the wording in NN4 contemplates that what will be provided at, in the sense of within, Newcastle Great Park, are open spaces and that those open spaces will encompass the recreational areas, including sports fields.  I am not deciding whether the claimant is right or wrong.  In my judgment, Mr Brown’s arguments about interpretation are arguable.  On one reading of the wording, it might mean that the open spaces have to be provided within the area of Newcastle Great Park.  I recognise the defendant puts forward arguments to the alternative. Should the matter ever go to a court case, a judge would have to decide which of the two of them are right, but each of them at the moment, in my judgment, have arguable submissions.  In that sense, ground 1 is arguable.  I will deal below with the question of whether, as a matter of discretion, I should refuse permission in any event.
  1. The second ground deals with the green belt. The claim form identifies five arguable errors in relation to the consideration of the green belt.  In oral submission, Mr Brown focused, in particular, on what he describes as the conflation of visual and spatial impact and says that you cannot use visual impact, or the lack of visual impact, to detract from the spatial impact.  Put simply, if something is physically there that has an impact spatially, i.e. the thing is there.  So in assessing spatial impact, the fencing, the hard surfacing and the cycle path will be there and you must assess the spatial impact of those physical things. He submits that you cannot have regard or minimise that physical fact, the existence of the fencing and the cycleway, by looking at their visual impact and saying, “Well, yes, they are there. There is built development in the open belt, but nonetheless visually it does not look too bad and therefore it is acceptable from a spatial point of view”.  He submits that the two questions, visual and impact, must be assessed separately.
  1. Mr Moules, for the defendant, supported by Mr Banner QC, for the interested party, say, firstly, that that is to regard visual and impact as hermetically sealed when, in reality, they are not and it is possible for the one to impact on the other.  They further submit that, read fairly, para.113, about which exception is taken, does not in fact conflate visual and spatial impact.
  • There are also five other errors listed at para.36 of the claim form through to 40. Para 36 deals with the conflation of spatial and visual.  The second alleged error is the fact that the report refers to similar fencing being found elsewhere on the boundary of Cell B1.  Thirdly, it says that the officer’s report failed to take into account that the fencing would extend for over a considerable length.  Fourthly, it is said that there is an element of contradiction within the officer’s report because it says that, save for the proposed fencing, the land would remain open, and it is said that that constitutes a recognition that the fencing means it is no longer open.  Then, fifthly, it says that there is an error because there would be other things in the green belt as well as the fencing, namely goalposts and the creation of a hard surface, a path, possibly a cycleway. There was also a reference to shelters but it seems now to be agreed that that matter would be assessed by way of reserved matters.
  • The position in relation to the green belt, as a matter of law, is now largely resolved by the decision of the Supreme Court in R (Samuel Smith Old Brewery (Tadcaster) & Ors) v North Yorkshire County Council[2020] UKSC 3, a decision of a little over a week ago. I remind myself of the relevant paragraphs of that judgment, in particular the legal principles section starting at para.21.  Paragraph 22 notes that the concept of “openness” is a good example of a broad policy concept.  It is the counterpart of urban sprawl.  It is not necessarily a statement about the visual qualities of land, although in some cases that may be an aspect of it.  Nor does it imply freedom from any form of development. Some forms of development may, in principle, be appropriate and compatible with the concept of “openness”.
  • It notes, with approval, a dictum of Sales LJ (as he then was) in the following terms:

“The concept of ‘openness of the Green Belt’ is not narrowly limited to the volumetric approach suggested by [counsel]. The word ‘openness’ is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment occurs … and factors relevant to the visual impact on the aspect of openness which the Green Belt presents.”

            The Supreme Court goes on to say that that was essentially a correct statement of approach but told one nothing about how visual effects may or may not be taken into account.  Lord Carnwath said that this was a matter not of legal principle but of planning judgment for the planning authority or the inspector.  

  • At para.39, Lord Carnwath again makes it clear that the question of whether or not there was any visual impact affecting openness was a matter of planning judgment and not law and he was satisfied that the officer’s report dealt with all the relevant factors of openness.
  • Dealing with para.113 of the report, about which specific criticism was made, reading the report as a whole and fairly, it does not, in fact, conflate in an unacceptable manner spatial effect and visual effect.  Paragraph 113 says this:

“The use of the land as playing pitches itself would not have a spatial effect on the openness of the Green Belt. The area to be used as pitches is currently predominantly grassland with some planted areas that will require removal. The fencing is the only element of built development that is proposed. The fence will be 1.8m high and made of green wire mesh fixed to metal posts. Similar fencing exists (albeit of a greater height) on the southern boundary of Cell B1 that separates the site from Sage. The fencing, which is not a solid structure, allows views through, is proposed to be green, is in large parts seen against the backdrop of existing and proposed planting, and due to its scale and massing, is not considered to have a harmful spatial effect on the openness of the Green Belt.”

            Reading that paragraph as a whole and bearing in mind the other paragraphs which preceded and come after it, it is clear that it is essentially focusing on the physical or spatial aspect of the fencing. It is looking at its height, its composition, whether it is see-through or solid, whether it is to be seen against the backdrop of existing and proposed planting, and also its colour. The focus is on the scale and massing and, for that reason, having considered those matters, it was not considered to have a harmful spatial effect on the openness of the green belt. That seems to me to be a separation of spatial from visual, which is dealt with elsewhere in the report.

  • More generally, I am satisfied that the report, read fairly and as a whole, does precisely what Lord Carnwath in Samuel Smithconsidered the officer’s report should do.  It considered all relevant aspects of openness.  It assessed the visual impact and concluded that there was no effect on openness.  It considered spatial impact and, as I have indicated, in para.113 it was considered not to have a harmful spatial effect.  That dealt with the first criticism in para.36 of the grounds.
  • So far as the other criticisms are concerned, the officer’s report was not relying on the fact that similar fencing was found elsewhere on the boundary of Cell B1.  It referred to it as that was one of the facts that happened to exist.  It is not, on a fair reading, possible to say that the lack of spatial harm was based on the fact that there was a fence there already.
  • Dealing with the third criticism, it cannot realistically be said that the officer’s report failed to take into account the fact the fencing would extend for over a kilometre.  It is clear that the members knew and were told the amount of the land that was going to be used for sports pitches.  They were told that it would be surrounded by a fence for safety and maintenance purposes.  It was clear that the area of fencing would therefore reflect that and the officer’s report did make it clear what the position in that regard was.
  • So far as the fourth criticism is concerned, it is, in my judgment, not a fair criticism to say that para.125 talks about “save for the proposed fencing the land would remain open”, as if it was indicating that the fencing meant that it was not open.  The words have to be read as a whole.  It is a detailed, comprehensive officer’s report.  It would not be right to mark this as if it was some kind of essay.  What they are saying in para.125 is that even though there is proposed fencing there, the land would remain open.  They have assessed whether or not the presence of fencing prevents it being open in other paragraphs.
  • So far as the fifth criticism is concerned, the fact that there have to be goalposts is to my mind, inherent in the fact that they are providing pitches.  There would have to be something such as goalposts, if it is going to be used for that purpose, and again, as far as the presence of a hard surface part is concerned, that is, in my judgment, of minimal relevance.
  • Standing back from it, therefore, the Council report does thoroughly and fairly consider the impact on green belt.  It does not improperly conflate visual with spatial impact, and ground 2 would not be arguable on any analysis.
  • I turn then to the question of discretion, because the position that one has arrived at now is that ground 1 is arguable, namely the proper interpretation of the policy, but ground 2 is not arguable, namely the claim that the impact on the openness of the green belt had been misunderstood or misrepresented.  Section 31(3C) of the Senior Courts Act 1981 says that when considering an application for permission to apply for judicial review, the High Court must consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred.  Here the outcome was the grant of planning permission. The conduct complained of is that the proposal did not accord with NN4 as the area to be used for sports pitches, on this hypothesis, was to be outside the area of Newcastle Great Park, not within the area of Newcastle Great Park. 
  • But, in my judgment, looking at the report as a whole, it is highly likely that the outcome would have been substantially the same. The fact is that the members reading the report knew that the policy was approximately for 880 houses, not for 1200. They were told that, for example, in para.96, where it was made clear that the proposed development included a number of units, which was approximately 36 per cent above that identified as an approximate number in the Core Strategy.  It was obvious that the consequence of having a greater number of houses was that the playing fields would not be in the Newcastle Great Park area but would be on an area outside the Great Park area and in the green belt, in the area known as Cell B1.  The introduction to the report, in para.2, makes that clear and the point is made clear again at para.101 of the report.
  • Standing back then, the reader of the report knew that there was 36 per cent more housing than had originally been anticipated. They knew that playing fields were not going to be put on the Newcastle Great Park site.  They knew they were being put on land forming part of the green belt outside Newcastle Great Park.  They considered, in the rest of the report, whether that would be acceptable. They were advised and accepted that it would not interfere with openness and would not cause harm in relation to other policies such as those dealing with open spaces.  If they had been told formally that they were departing from policy NN4 by putting the sport pitches on the green belt but not on the Park itself, but that there was no conflict with the green belt and it was acceptable from the point of view of other policies, there is no realistic prospect that the outcome would have been substantially different.  It is highly likely that they would have granted outline planning permission as well.  
  • The suggestion that, if they had been told they could have 880 houses and the playing fields and still keep the open space, they might have refused planning permission, is, to my mind, unrealistic. What they were being told is, if they had more housing, 1200 rather than 880, and if, as an inevitable consequence, the sports pitches went into the green belt, that would be acceptable because it would not affect the openness of the green belt and would not give rise to harm under the other policies, they would, in my judgment, inevitably have reached the conclusion that planning permission should be granted for this development even if told formally that was a departure from policy NN4.  But, on any analysis, it is highly likely that the outcome would not have been substantially different.
  • So, in those circumstances, ground 2 is not arguable.  Ground 1 is arguable but, as a matter of discretion, I refuse permission because it is highly likely that the outcome would not have been substantially different. So for that reason, permission is refused.


  • There are before me two applications for costs for the preparation of acknowledgments of service, one by the defendant, one by the interested party. Laing J dealt with costs on the papers but provided that that could be reconsidered if the claimant had a renewed application to consider at an oral hearing, which has happened. 
  • In short summary, I found that one of the grounds was arguable but one of the grounds was not arguable and I found, as a matter of discretion, that I ought not to grant leave for the reasons set out in s.31(1C) of the Senior Courts Act 1981.
  • It is accepted that both the defendant and the interested party are, in principle, entitled to the reasonable costs of preparing an acknowledgement of service.  It is said, and I agree, that I cannot have regard to the Aarhus costs limits here.  The claimant, for whatever reason, said that she was not seeking to rely on those and I cannot, therefore, reintroduce them fairly at this stage.  She chose not to rely on the Aarhus cap and, in my judgment, it would be unfair at this late stage in proceedings to apply it.
  • The two major concerns, to my mind, are whether the costs are manifestly excessive for a summary stage, namely the acknowledgement of service, and, secondly, whether or not I ought to reflect the fact that, to a certain extent, so far as the acknowledgement of service is concerned, the arguments that went to ground 1 were not successful in terms of persuading me to refuse permission.  
  • It is inevitably a broad brush approach.  Mr Moules, for the defendant, seeks a total sum reflecting leading counsel, junior counsel, solicitors and Council officers, at a cost of £12,200.  In my judgment, having regard to what was appropriate for dealing with the grounds as raised and bearing in mind that they did not succeed on one, I would order the claimant to pay the defendant the sum of £9,000.
  • In relation to the interested party, the costs claimed are higher.  They are of the order of £16,000.  Again, taking a broad brush approach and bearing in mind the factors that Mr Banner has referred to, I would think it reasonable for the claimant to pay the interested party the sum of £10,000.
  • So the order is permission to apply for judicial review refused.  The claimant to pay the defendant costs of £9,000.  The claimant to pay the interested party costs of £10,000.



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