Judge quashes permission for extra care development

HHJ Pearce, sitting in the High Court found for objector Protecting Our Park on two of three grounds argued.

The case concerned Alderley Park, which was formerly the home of an AstraZeneca research centre and is now being redeveloped for life science businesses.

A development framework referred to other development in parts of the site to provide capital funding for the proposed Life Sciences Park.

Alderley Park is in the green belt and so subject to numerous restrictions on development.

Cheshire East though adopted a policy known as LPS 61, which allows residential development with the proceeds intended to develop the Life Sciences Park.

Developer Symphony Park applied to build 139 extra care units together with associated facilities and Cheshire East granted consent following the recommendation in an officer’s report.

This said the scheme would contribute to filling the viability gap to deliver a new life sciences office development, where a minimum of £16m was needed, and a laboratory development, which needed at least £11.35m.

It was not clear though whether these receipts would simply contribute to the development of these facilities or ‘enable’ their construction as stated in the policy.

The report said: “However, if the land receipt fills only a small part of the funding gap and there is no realistic prospect of alternative sources of funding to fill the remaining gap, then it seems uncertain that the office and laboratory development would come forward, even with the land receipt from this scheme.

“If this is the case, then it would be questionable whether the scheme can be considered to ‘enable the delivery of the life sciences park’ as required under the policy.”

Protecting Our Park said the actual level of funding expected from Symphony Park was not identified before the committee.

It argued that Cheshire East acted unlawfully by failing to identify the level of cross funding that would be provided by the scheme; that its conclusion that the scheme accorded with LDS 61 was irrational and that it failed to give adequate reasons for its decision.

HHJ Pearce said: “The core of the claimant's argument on Ground 1 is that it was not possible for the defendant properly to conclude that the scheme accorded with LPS 61 without first identifying what cross funding would be available as a result of the approval of the application.”

He said the policy did not require the cross funding to meet the cost of building the laboratory and offices, but if Cheshire East could be shown to have made its decision on the basis that the proposed development would fund the shortfall it would have been incumbent on the planning officers to provide relevant information and  “a decision taken without the relevant information would be robbed of rationality”.

The judge said he was not persuaded by the council’s argument that councillors could properly be taken to be a knowledgeable audience who would have known from the context that the application of the profits to the reserves was a sufficient basis to conclude that permission should have been granted.

He said: “Members might have taken their decision on the basis that the development should be approved because it would lead to an identified development in the Life Sciences Park, namely the construction of the laboratory and offices.

“Such a conclusion was not one that they could rationally have reached based on the information with which they were presented and in the absence of specific information as to the amount of the funding shortfall.

"They might equally have taken the decision they did if they had known or suspected that there would have been shortfall, but such a decision would have required rationalisation in a manner which simply cannot be made out on the material before the court.”

HHJ Pearce said it followed that the grant of planning permission “cannot be said to meet the test of rationality because there is no material from which it can be determined whether they reached their decision to grant permission on grounds that are lawful”.

Cheshire East argued he should refuse relief under Section 31(2A) of the Senior Courts Act 1981.

But HHJ Pearce said: “However, the difficulty in this contention lies in the absence of any evidence that the members were aware of the inability of the Symphony Park Development to fund the shortfall in the funding for the construction of the laboratory and offices.”

It could have been arguably rational for the members to conclude that planning permission should be granted because the scheme would part fund the proposed development of the Life Sciences Park.

But that would involve consideration of how any shortfall might be met, whether the construction of the laboratory without the offices was a viable development and what was to happen in the event that the laboratory and offices were not constructed.    

He rejected a ground that the planning consent was a breach of LPS 61, but upheld the reason challenge and quashed Cheshire East’s decision.

Mark Smulian