R (on the application of the Heath and Hampstead Society) v Camden LBC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Sedley,Lord Justice Waller
Judgment Date19 March 2008
Neutral Citation[2008] EWCA Civ 193
Date19 March 2008
Docket NumberCase No: C1/2007/1041

[2008] EWCA Civ 193

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE SULLIVAN

Before:

Lord Justice Waller

Vice President Of The Court Of Appeal, Civil Division

Lord Justice Sedley and

Lord Justice Carnwath

Case No: C1/2007/1041

CO/1454/2006

Between:
The Queen On The Application Of Heath & Hampstead Society
Respondent
and
Messrs Alex And Thalis Vlachos
First And Second Appellants
and
London Borough Of Camden
Third Appellant

David Elvin QC & Charles Banner (instructed by Messrs David Cooper & Co) for the First and Second Appellants

Peter Harrison QC (instructed by London Borough of Camden Legal Services) for the Third Appellant

Anthony Porten QC (instructed by Messrs Hunt & Lisners) for the Respondent

Hearing date: Tuesday 26th February 2008

Carnwath LJ:

Introduction

1

This appeal raises a short question on the interpretation of the Metropolitan Open Land (“MOL”) policy. It concerns a planning permission granted by Camden Council on 23 January 2006 for-

“demolition of the existing part 1, part 2-storey dwellinghouse with associated terraces and brick shed and erection of a part 2, part 3-storey dwellinghouse with associated landscaping.”

2

The existing dwellinghouse is known as The Garden House in the Vale of Health, London, NW3. It is on a backland site to the rear of 7–12 Heath Villas. The site slopes down towards the Hampstead pond to the east. The house itself is a 1950s dwelling-house with two storeys and a pitched roof, described as “modest and unassuming” and “architecturally uninspiring”. There is a high brick wall separating the house from the houses in Heath Villas, the top floors of which overlook the site. On the other side in front of the house facing the pond, there is a raised patio with steps down to the substantial garden.

3

The new building would on any view be substantially larger than the existing, although no higher (because much of the increase would be below ground level). Depending on how the calculations are done, there would be a three-fold increase in floor space; perhaps a four-fold increase in built volume; and between two and two-and-a-half times increase in its footprint. However, the council were apparently satisfied that the proposal was consistent with the relevant policies, because it would not be “materially larger”. They were advised by their planning officer that the limited increase to the existing residential use was acceptable in planning terms (para 6.4), that the extension would not have any impact on the buildings in Heath Villas (para 6.5.5), that the proposed architectural treatment would “significantly break down the perceived bulk of the building in views across the pond” (para 6.6.1), and that:

“… the enlarged footprint of the proposed dwelling is largely achieved towards the rear of the site and, as this will not be visible from the ponds, it is considered that this will only have a minimal impact on the character and setting of the MOL …..”

4

The officer's reasoning was specifically incorporated into the statutory reasons for the grant of permission, and accordingly must be taken as representing the formal view of the council itself.

5

The Society contends that this advice and the decision based on it reflected a misinterpretation of the applicable policy. The judge agreed, and quashed the permission.

Green Belt and MOL policy

6

The applicable planning policies were described in detail by Sullivan J, and it is unnecessary to repeat them. Most importantly, in the present context the site is on land designated as Metropolitan Open Land. On such land new development is strictly limited, but less restrictive policies apply to what is known as “appropriate development”.

7

The concept of “appropriate development” is well-established in the context of Green Belt policy. It reflects a distinction between two stages of the analysis: whether development is “appropriate” in the Green Belt and how much harm to the Green Belt a particular proposal will do (see e.g. per Keene LJ, Kemnal Manor Memorial Garden v Secretary of State [2005] JPL 1568 para 28). Certain categories of development, such as agricultural buildings, recreational facilities, and cemeteries, have traditionally been regarded as acceptable in principle, subject to other planning considerations. “Inappropriate development”, which includes most forms of residential or commercial development, is unacceptable in principle, and is permitted only in “very special” circumstances. The same policy approach is applied to land in the MOL. It follows that an important first step, or “threshold” question (as the judge described it), in relation to an application for development in the Green Belt or the MOL, is to decide on which side of the appropriate/inappropriate line it falls.

8

The relevant Green Belt policy is found in PPG 2: Green Belts. There is a general presumption against “inappropriate development” which should not be approved “except in very special circumstances”. Paragraph 3.3 states:

“Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” (para 3.2)

Under paragraph 3.4, construction of new buildings in the Green Belt is “inappropriate”, unless it is for certain purposes, which are defined with varying degrees of specificity. They include, for example, “agriculture and forestry”; and -

“—essential facilities for outdoor sport and outdoor recreation, for cemeteries, and for other uses of land which preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it …..;”

9

The relevant category for present purposes is:

“—limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below);”

The expression “not materially larger” comes in paragraph 3.6, to which the latter category is said to be “subject”:

“3.6 Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable.”

10

Even when a building has been accepted as “appropriate”, there remains a second question whether it is acceptable on other grounds. Thus, paragraph 3.15 of PPG 2 deals with “visual amenity”:

“The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design.”

11

In relation to MOL policy, the corresponding definition is found in Policy N1 in the revised Camden Unitary Development Plan, which states that the council “will only grant planning permission for appropriate development on Metropolitan Open Land”. The categories are similar, but not identical, to those defined by PPG2 for Green Belts, but they include in the same words:

“g) the limited extension, alteration or replacement of existing dwellings.”

It is not in dispute that this, like the same category in PPG2, is to be interpreted by reference to paragraph 3.6 of the PPG. It is also accepted that, since PPG2 is a national policy document, the criterion should be given a consistent interpretation across the country.

12

Accordingly, it is common ground that the relevant test, to decide whether a proposed replacement dwelling is “appropriate”, is whether it would be “not materially larger than the dwelling it replaces”.

The Issue

13

The issue is a short one: whether the “materially larger” test imports, solely or primarily, a simple comparison of the size of the existing and proposed buildings; or whether it requires a broader planning judgment as to whether the new building would have a materially greater impact than the existing building on the interests which MOL policy is designed to protect. Mr Elvin's case, in a nutshell, is that, in the context of policies designed to protect the MOL, the development cannot said to be “materially” larger, if the increase has no “material” impact on the objectives of the MOL; or at least that the authority could reasonably take that view.

14

The approach of the court to such issues was explained by Brooke LJ in R v Derbyshire CC ex p Woods [1997] JPL 958, 967 (a case concerning the application of Departmental Planning Guidance Note of Minerals):

“If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy… If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will...

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