It was a different sort of Black Friday for Botley folk opposed to development at Boorley Green after a judicial review into Eastleigh Borough Council’s decision to grant outline planning permission for up to 1,400 new homes at Boorley was dismissed by a High Court Judge.
Botley Parish Action Group (BPAG) had brought the action in conjunction with Botley Parish Council (BPC) and was accompanied to the hearing by members of the Botley Park Golfers protest group.
Also present in court were representatives for the council and the developers.
It had already taken two attempts by BPAG to get the matter to a judicial hearing after conditional planning permission for the development had been granted at a heated marathon session of the Hedge End, West End, and Botley Local Area Committee (HEWEB) in February 2013 (read Ray Turner’s report here).
On Friday Lord Justice Collins said it was “unfortunate” that there had been a delay in progressing the matter because there was an “urgent” need for housing in Botley.
While outlining the case the judge described the current planning process in general as “overly complicated” and said the application should have been dealt with in a “speedy manner.”
Although objectors had previously stated multiple reasons for opposing development at Boorley Green, in the end the legal argument hinged on a single point of law.
BPAG’s barrister contended that council planning officers whom, he claimed, suggested that members needn’t consider alternative sites – namely land at Allington Lane – had given the councillors at the HEWEB meeting in February 2013 “erroneous advice.”
“The availability of an alternative site is a material consideration.
It is wrong in law not to advise members that an alternative site cannot be a material consideration”
BPAG’s brief argued that the proposed Boorley development was an exceptional one in terms of size consisting of 1,400 houses going into an 81 hectare site complete with affordable and assisted living housing units, community facilities, a primary school and 4,000 square metre of employment floor space which would make it the biggest single development in Eastleigh for quarter of a century.
There had also been a high number of objections – over 600.
On this basis, according to BPAG, other alternatives including the Allington Lane site should have been considered.
From the outset of the hearing Lord Justice Collins made it clear that he was not in a position to consider the relative merits of either the Boorley or Allington site but only whether or not the planning decision had been arrived at lawfully.
But after hearing arguments from both sides the judge finally sided with Eastleigh Borough Council.
The judge said there was an urgent need for housing in Botley partly because Eastleigh Borough Council had failed in it’s requirement to provide a five year housing supply but he also noted that the site at Allington Lane had previously been considered by the council and rejected as unsuitable and furthermore he thought it was significant that there had been no interest from developers for the West End site.
In dismissing the claim the judge concluded that Eastleigh council officers had done no wrong:
“Officers cannot be criticised for approaching the matter as they did.
I’m satisfied there was no error of law.”
The council’s lawyers asked for an increase in their application for costs.
Under the ‘Aarhus Convention’ parties bringing cases against public authorities on environmental matters could have their costs limited to ensure access to justice.
Both BPAG and BPC had anticipated paying £5,000 each but Lord Justice Collins was persuaded to increase BPC’s liability to £10,000 –making a total of £15,000 against the two parties – although the defence lawyers observed that Eastleigh Borough Council’s costs ‘comfortably exceeded’ this sum.
Despite being clearly disappointed with the latest setback and surprise hike in costs – “this is not what I would call natural justice” said BPC Chair Colin Mercer – the Botley delegation managed to remain upbeat.
Spokesperson Sue Grinham vowed “This is not the end of BPAG” and promised that the pressure group would continue to oppose development in Botley at the local plan hearings and individual planning applications as they arose.
Mrs Grinham pointed out that neither BPAG nor BPC were opposed to more housing in Botley and had previously suggested to Eastleigh Borough Council that the area could absorb up to 500 new homes elsewhere in the parish.
BAPAG told Eastleigh News they would carefully consider the possibility of an appeal and said it was “ironic” that the council had to rely on their own “mismanagement” of the local housing supply in their defence.
A Council spokesman said:
“The Council welcomes the decision of the High Court to uphold the decision of Eastleigh Borough Council to grant outline planning permission at Boorley Green.
This ruling enables the borough council to continue to bring forward much needed new housing and community facilities on this site in consultation with developers and the local community.”