Case law >> Building in protected areas rests on public sense rule

8th October 2013


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  • Local government ,
  • Construction

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IEMA

LesisPSL's Jen Hawkins discusses a ruling in the High Court that development in protected areas must be "necessary in the public sense"

In Cherkley Campaign v Mole Valley District Council [2013] All ER (D) 180, the High Court allowed a judicial review of the local planning authority’s decision to grant planning permission for a hotel and spa complex with an 18-hole golf course.

The site was within an area of great landscape value and outstanding natural beauty, as well as the Metropolitan Green Belt – the statutory green belt around London.

The local plan required the developer to demonstrate that further golf facilities in the area were “necessary” in the interests of the wider community. The developer attempted to deal with this by suggesting that “need” could be equated with private sector “demand”, and claimed there was an appetite for such a facility.

This was rejected by Mr Justice Haddon-Cave. He stated that pure private demand was antithetical to public need, particularly very exclusive private demand. He asserted that, on the contrary, the more exclusive the development, the less public need is demonstrated.

It is apparent that the term “need” does not have a general meaning but should be interpreted in the relevant context. For example, in the national planning policy framework, “need” has different meanings in the context of housing development from that in the Cherkley case, whereby authorities must consider private sector demand for housing.

In Cherkley, the local plan stipulated that development in designated areas that resulted in the loss or deterioration of irreplaceable habitat should be refused permission unless “the need for, and benefits of, the development in that location clearly outweigh the loss”.


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