Smith v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 11 October 2017 |
| Neutral Citation | [2017] EWHC 2562 (Admin) |
| Docket Number | CO/863/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 October 2017 |
[2017] EWHC 2562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Sir Ross Cranston
(Sitting as a Judge of the High Court)
CO/863/2017
APPEARANCES
Mr Z Simons (instructed by the Government Legal Department) appeared on behalf of the Claimant.
Mr R Turney (instructed by Kingsley Smith LLP) appeared on behalf of the Respondent.
This is a claim under s.288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the Secretary of State for Communities and Local Government, which dismissed his appeal against the refusal of planning permission by the London Borough of Bexley (“the council”). The proposed development is the conversion of a building to provide two four bed semi-detached dwellings at Manor Freehold Farm in Sidcup, Kent.
In broad outline, the claim involves the planning inspector's approach to the visual impacts of the proposed development and its effects on the openness of the Green Belt.
Background
The background, in brief, is this. The proposed development is in the Metropolitan Green Belt. The site comprises a substantial single storey shed and an extensive area of hard standing. The building is arranged as four self-contained units. Over the years they have been used for various commercial purposes. The hard standing is used for parking and the storage of vehicles.
Early last year, the claimant applied to the council for planning permission for the conversion of the building to form two residential dwellings. The proposal did not involve any extension to the building, or the construction of any other building. There were to be fences round the gardens of the proposed dwellings, bin storage and parking for vehicles. The existing area of hard standing was to be broken up and, in the main, returned to grass.
On 20th March 2016, the council refused permission. There were a number of reasons given, but the reason relevant to this application was that the proposal was for inappropriate development in the Green Belt. In relation to that, the officer's report to the council's planning committee had said that the proposed use for residential purposes would continue the sprawl of urbanisation at a point where the urban edge of Sidcup defined the outer edge of the council's district.
The claimant appealed and the appeal proceeded by way of written representations. The Secretary of State appointed an inspector, Mr Michael Boniface, to determine the appeal. He conducted a site visit.
The inspector's decision letter
In his decision letter of 11th January 2017, the inspector identified the issues and considered whether the proposed development was inappropriate because of its effect on openness of the Green Belt. The inspector referred to the National Planning Policy Framework (“the NPPF” or “Framework”). He said that under para.90 of the NPFF new buildings were to be regarded as inappropriate development in the Green Belt subject to the express exceptions outlined in paras.89 and 90.
In his decision letter, the inspector then said this:
“6. Amongst others, these exceptions include the re use of buildings provided that the buildings are of permanent and substantial construction. There is no dispute between the parties that the building subject of this appeal can be described as such. However, this exception is subject to the caveat that development would preserve the openness of the Green Belt and not conflict with the purposes of including land in Green Belt.
7. The existing building would be re used for residential purposes without extension. However, garden areas associated with the two dwellings would be enclosed by 2m tall close boarded fences, as would a new bin store to the front of the building. There would also be space provided to park vehicles and it is likely that domestic paraphernalia accompanying a residential use, including items such as washing lines, parasols and furniture that might be beyond the scope of planning control would also result. All of these items would have a volume and have some, albeit limited, impact on the openness of the Green Belt, as well as a domesticating effect on the character and appearance of the area.
8. The appellant does not dispute the presence of such items or the Council's position that they would harm openness, notwithstanding that the re use of the building is said not to harm openness. Whilst the harm arising to openness is likely to be limited in this case, the development would be harmful nonetheless. Under these circumstances, the development does not meet the exemption set out above and the proposal would constitute inappropriate development. The development would also conflict with the purposes of the Green Belt to check the unrestricted sprawl of built up areas and safeguard the countryside from encroachment. I attach substantial weight to the harm that would arise to the Green Belt.”
Under the heading “Other Considerations”, the inspector said:
“12. The building is currently surrounded by an extensive hard standing and its replacement with grass and other landscaping has the potential to improve the character and appearance of the area. I attach this benefit limited weight. Whilst this is so, the hard standing does not currently affect the openness of the Green Belt and so no benefit would arise in this respect.”
The inspector concluded that the proposed development would constitute inappropriate development in the Green Belt and would harm openness. Other considerations did not outweigh that harm. Accordingly, he dismissed the appeal.
The legal framework.
The NPPF addresses Green Belt matters at para.79 to 92. Relevant to this appeal are the following paragraphs:
“9. Protecting Green Belt land.
79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
80. Green Belt serves five purposes:
• to check the unrestricted sprawl of large built up areas;
• to prevent neighbouring towns merging into one another;
• to assist in safeguarding the countryside from encroachment;
• to preserve the setting and special character of historic towns; and.
• to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.
[…]
87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
• buildings for agriculture and forestry;
• provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
• the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building.
• the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
• limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
• mineral extraction;
• engineering operations;
• local transport infrastructure which can demonstrate a requirement for a Green Belt location;
• the re use of buildings provided that the buildings are of permanent and substantial construction; and
• development brought forward under a Community Right to Build Order.”
There have been a number of cases relevant to the interpretation of para.90 of the NPPF. First there is Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government & Ors [2013] EWHC 2643 (Admin), relevant to the correct approach to the proviso in para.90, that one has to start from the premise that the developments in the bullet points are appropriate. That was a case involving mineral extraction. In other words, it concerned the first bullet point in para.90....
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Table of Cases
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