R (on the application of the Heath and Hampstead Society) v Camden LBC
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 03 April 2007 |
| Neutral Citation | [2007] EWHC 977 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1454/2006 |
| Date | 03 April 2007 |
[2007] EWHC 977 (Admin)
Mr Justice Sullivan
CO/1454/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR DAVID ALTARAS (instructed by J Hunt & Lisners of Northampton) appeared on behalf of the CLAIMANT
MR PETER HARRISON QC (instructed by Legal Department, London Borough of Camden) appeared on behalf of the DEFENDANT
MR DAVID ELVIN QC and MR CHARLES BANNER (instructed by David Cooper & Co) appeared on behalf of the Interested Parties
Introduction
In this application for judicial review the claimant seeks a quashing order in respect of a planning permission granted by the defendant to the interested parties on 23 January 2006 (the planning permission) for the —
"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."
The existing dwellinghouse is The Garden House in the Vale of Health, London, NW3. The Garden House is described in the officer's report at the meeting of the defendant's Development and Control Sub-committee on 19 January 2006 as —
"a modest 2-storey pitched roof single dwellinghouse, dating from the 1950s, with a detached brick shed against the rear boundary wall near the entrance."
The application site is a backland site to the rear of 7–12 Heath Villas. The site slopes down towards Hampstead Pond which borders the site to the east. The Vale of Health is close to the north-western edge of Hampstead Heath and the site is within the Hampstead and Highgate Ridge Area of Special Character and the Hampstead Conservation Area. In the Development Plan it is defined as Private Open Space (POS) and, of particular relevance for the purposes of these proceedings, it is designated as Metropolitan Open Land (MOL).
MOL, The Development Plan and other Policy Guidance
The Development Plan comprised the London Plan and the defendant's Unitary Development Plan (UDP). When the sub-committee met on 19 January 2006 the Camden Unitary Development Plan of 2000 was the adopted plan. However the Camden Revised Deposit Draft UDP 2004 was a significant way through the adoption process. It was adopted in June 2006.
The parties were agreed that, in order to avoid unnecessary duplication, it was sensible to consider the policies in the revised UDP. The relevant policies in the London Plan, which replaced the guidance in RPG 3 as from February 2004, are as follows:
"Policy 3D.9 Metropolitan Open Land
The Mayor will and boroughs should maintain the protection of Metropolitan Open Land (MOL) from inappropriate development. Any alterations to the boundary of MOL should be undertaken by boroughs through the UDP process, in consultation with the Mayor and adjoining authorities. Land designated as MOL should satisfy one or more of the following criteria:
• land that contributes to the physical structure of London being clearly distinguishable from the built-up area
• land that includes open air facilities, especially for leisure, recreation, sport, arts and cultural activities and tourism which serve the whole or significant parts of London
• land that contains features or landscapes of historic, recreational, nature conservation or habitat interest of value at metropolitan or national level
• land that forms part of a Green Chain and meets one of the above criteria.
Policies should include a presumption against inappropriate development of MOL and give the same level of protection as the Green Belt. Essential facilities for appropriate uses will only be acceptable where they do not have an adverse impact on the openness of MOL.
3.248 The Metropolitan Open Land (MOL) designation is unique to London and protects strategically important open spaces within the built environment. Although MOL may vary in size and primary function in different parts of London, it should be of strategic significance, for example by serving a wide catchment area or drawing visitors from several boroughs. MOL is the same as the Green Belt in terms of protection from development and serves a similar purpose. It performs three valuable functions:
• protecting open space to provide a clear break in the urban fabric and contributing to the greener character of London
• protecting open space to serve the needs of Londoners outside their local area
• protecting open space that contains a feature of the landscape of national or regional significance.
3.249 MOL will be protected as a permanent feature, and afforded the same level of protection as the Green Belt. Appropriate development should minimise any adverse impact on the open character of MOL through sensistive design and siting and be limited to small scale structures to support outdoor open space uses. The boundary of MOL should only be altered in exceptional circumstances and should be undertaken through the UDP process in consultation with the Mayor. Development that involves the loss of MOL in return for the creation of new open space elsewhere will not be considered appropriate."
It will be noted that the London Plan does not define what is appropriate development within MOL. That definition is contained in Policy N1 in the Revised UDP, which is in these terms:
"N1—Metropolitan Open Land
The council will only grant planning permission for appropriate development on Metropolitan Open Land. Appropriate development is considered to be:
a) cemeteries;
b) open air sport and recreational facilities;
c) open air leisure, arts and cultural facilities;
d) open air tourist facilities;
e) allotments;
f) the construction of new buildings for essential facilities associated with criteria a), b); and
g) the limited extension, alteration or replacement of existing dwellings."
The explanatory text is in these terms:
"4.8 Metropolitan Open Land, as shown on the Proposals Map, is open space that is clearly distinguishable from the built-up area and is significant beyond the Borough and therefore receives the same presumption against development as green belt land. Metropolitan Open Land brings benefits to the whole of London by providing useful and attractive breaks in the built-up area and by retaining a variety of high quality open spaces, landscapes and areas important for their recreational, amenity, bio-diversity, structural, educational, social and cultural roles.
4.9 There are four main areas of Metropolitan Open Land in Camden:
Hampstead Heath and 14 adjoining areas;
Regents Park;
Primrose Hill and the adjoining Barrow Hill Reservoir and the area made up of Highgate Cemetery (East and West); and
Waterlow Park and Fairseat.
4.10 There is a long-term commitment by local and central government to maintain and enhance Metropolitan Open Land by keeping it free from inappropriate development and their uses. As set out in policy N2A, only development ancillary to a use taking place on Metropolitan Open Land, for which there is a demonstrable need that cannot reasonably be satisfied elsewhere, is appropriate. Appropriate uses on Metropolitan Open Land, which recognise the landscape and nature conservation value of the land and its importance as a place of informal recreation, are set out in policy N1. For the purpose of N1, new buildings for essential facilities should be genuinely required for uses of land that preserve the openness of Metropolitan Open Land. Examples of these are outlined in Planning Policy Guidance 2: Green Belts. The Council will also welcome the removal of existing non-appropriate buildings."
Since the Development Plan makes it clear that "MOL is the same as Green Belt in terms of protection and serves a similar purpose" (see above), the policy guidance in PPG 2: Green Belts is of particular significance. Paragraph 1.4 of PPG 2 identifies the underlying purpose of Green Belts:
"1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness."
Paragraphs 3.1 and 3.2 are in these terms:
"3.1 The general policies controlling development in the countryside apply with equal force in the Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.
3.2 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. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
Paragraphs 3.4 and 3.6 deal with new buildings in the Green Belt:
"3.4 The construction of new buildings inside a Green Belt is inappropriate unless i is for the following purposes:
- agriculture and forestry …..;
- 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 …..;
- limited extension, alteration or replacement...
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