The London Borough of Bromley v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] EWHC 595 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 February 2016 |
| Docket Number | CO/4218/2015 |
[2016] EWHC 595 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin QC
(Sitting as a Deputy High Court Judge)
CO/4218/2015
Miss R Grogan (instructed by the London Borough of Bromley) appeared on behalf of the Claimant
Mr R Kimblin ( Mr H Mohamed for judgment) (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mr J Clay ( Mr M Paget for judgment) (instructed by Brachers LLP) appeared on behalf of the Second Defendant
THE DEPUTY JUDGE ( David Elvin QC):
Introduction
The Claimant, the London Borough of Bromley, applies under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of the First Defendant's Inspector, Mr Tim Wood, given by decision letter dated 27 July 2015. The issue on this application is the proper interpretation of paragraph 89 of the National Planning Policy Framework ("the NPPF") published in March 2012.
The planning appeal concerned an application for planning permission for the "redevelopment of previously developed land at Bromley Common Liveries, Bromley Common, to provide 9 no. mews houses and retention of part of the livery business with a new barn and associated workers dwellings". The proposed development therefore comprised two elements: the introduction of a residential use in the form of 9 mews houses, and the construction of the new barn and associated workers dwellings for the livery business.
The Claimant refused planning permission on 14 January 2015 and the first reason for refusal asserted a conflict with local and national Green Belt policy:
"The proposed development constitutes inappropriate development within the Green Belt and no special circumstances exist which might justify the grant of planning permission as an exception to established policy G1 of the Unitary Development Plan and the National Planning Policy Framework 2012."
The officer's delegated decision report, which preceded the decision, approached the redevelopment of the livery business as including a material change of use although this was in the context of out of date UDP policy G1 which allowed appropriate development to include material changes of use which preserved the openness of the Green Belt, no longer found in national policy in the form of the NPPF which post-dated the UDP although it had formed part of earlier national policy in PPG2 paragraph 3.12, cancelled in 2012.
The outcome of this application turns not on the out-of-date UDP policy but on the construction of the sixth and final indent in paragraph 89 of the NPPF and the correct approach to the exceptions in paragraph 89 to the general policy that new buildings are inappropriate development in the Green Belt.
The Inspector identified at paragraph 3 of his decision the issues, the first of which was:
"Whether the proposal constitutes inappropriate development in the Green Belt."
He considered that the proposal (which comprised new buildings) was appropriate development and he concluded that, applying the requirements of paragraph 89 indent 6, those new buildings would not impact adversely either on the openness of the Green Belt or the purposes for designation of the Green Belt. It was a common position of the parties before the Inspector that the appeal should be determined by reference to the most up-to-date version of Green Belt policy in the NPPF.
The relevant passages in the decision letter are found at paragraphs 4 to 6:
"4. Policy G1 of the Bromley Unitary Development Plan of July 2006 (UDP) states that new buildings or extensions to buildings in the Green Belt will be inappropriate development unless it falls within specified categories, none of which cover the proposed development. The National Planning Policy Framework (the Framework) states at paragraph 89 that new buildings in the Green Belt should be viewed as inappropriate and then specifies exceptions, which includes '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'. There is clearly a degree of inconsistency between the UDP and the more recent Framework in this respect and I consider the Framework to be an important material consideration in this respect; one which outweighs the UDP on this particular point.
5. The appellants set out within their submissions that the proposal would bring about a reduction in the footprint of buildings on the site of around 41% and a reduction in the volume of buildings of around 17%. Whilst it is important to keep in mind that the proposal is in outline form and all matters except access are to be determined at a later stage, the illustrative scheme is indicative of one way in which the site may be redeveloped.
6. The illustrative scheme shows 9 houses facing onto a central court, with car parking and garaging; the houses are shown with associated garden areas. The workers dwelling and livery would be sited on the opposite side of the internal road way. It is acknowledged that part of the site forms previously developed land and the 9 dwellings would not extend beyond that part of the site in question. The houses indicated would be of 2 storeys but with a large amount of the first floor accommodation contained within the roof. Even though the proposal would bring a different use of part of the site, I consider that its effect on openness would be no greater than the existing buildings. In terms of consideration of the purposes of including land within the Green Belt, I consider that the proposal would not lead to encroachment of the countryside as the proposal would bring about a reduction in building volume (for the illustrative scheme) and would not extend beyond what is previously developed land. The other purposes of including land in the Green Belt, as set out in paragraph 80 of the Framework would not be interfered with. Therefore, I find that the proposal is not inappropriate development in the Green Belt and, as this category of development relies on an assessment of the effects on openness, there are no other unacceptable effects on the Green Belt."
No issue was taken by the Claimant with regard to the planning judgments applied with regard to openness and the purposes of the Green Belt at paragraph 6. Issue was only taken with the application in principle of the exception for new buildings proposed here because, it is submitted by Miss Grogan on behalf of the Claimant, the exceptions either do not allow material changes of use or, in the alternative, do not do so unless the uses are specified by the exception in paragraph 89. She submits that in the light of the Court of Appeal's decision in R (Timmins) v Gedling Borough Council [2015] PTSR 837, applications that involve material changes of use (see section 55 of the 1990 Act) cannot be appropriate development.
Statutory context
The statutory context in which this application and the NPPF fall to be considered was set out by Richards LJ in Timmins at paragraphs 6 and 7, namely the inclusion of material change of use as a category of development in section 55 of the 1990 Act and the definition of "building" in section 336(1).
Section 75(2) and (3) of the 1990 Act make provision for the permitted use when planning permission is granted for operational development:
" 75 Effect of planning permission
…
(2) Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used.
(3) If no purpose is so specified, the permission shall be construed as including permission to use the building for the purpose for which it is designed."
It follows that permission for new buildings will always carry with it permission for the use of the building, whether that specified in the permission or, in the absence of specification, for the use for the purpose for which the building was designed. The significance of section 75 is that paragraph 89 was drafted in the context of the legal position that an application for permission to develop new buildings will inevitably, if granted, carry with it permission for the use of the building or for a change of use, in appropriate cases.
It appears to me that that is, in part, why a number of the paragraph 89 categories of appropriate development in the form of new buildings include a stipulation as to the use of the buildings as part of the definition of the category. For example, indent 1 refers to new buildings "for agriculture and forestry", indent 2 to "outdoor sport, outdoor recreation and for cemeteries" and, notably indent 4 refers to new buildings "in the same use" as "the one it replaces".
Mr Kimblin, for the Secretary of State, and Mr Clay, for the Second Defendant, both rely on this provision to show that all new buildings have a permitted use and permission for operational development may also effect a material change of use. Miss Grogan, on the other hand, submits that the existence of section 75 does not detract from her point, which is that if an application involves a material change of use, whether or not it is expressly referred to in the application, it is of necessity inappropriate development.
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