Budhdeo & Anor v Secretary of State for Communities and Local Government & Anor

Judgment

His Honour Judge Sycamore:

“1. (i) In considering the “materially larger” test in relation to the proposal for a replacement dwelling, he failed to consider the flexibility criterion in judging materiality.

(ii) In relation to the proposal for a replacement dwelling, he erred in law in concluding that loss of openness, albeit “limited” would be harmful and therefore impermissible.

(iii) In relation to the proposal for a replacement dwelling, in judging the impact of openness, he erred by taking into account the increase in “built development” on the site without distinguishing between the impact at ground level and above ground level.

2. The foregoing grounds 1 (i) to 1 (iii) are repeated in relation to the proposal for the altered dwelling.

3. In relation to the Very Special Circumstances in paragraph 88 of the NPPF, he:

- failed to distinguish between definitional harm and actual harm;

- failed to consider the impact of either proposal on the purposes served by the section of Green Belt in which the appeal site is situated;

- limited his considerations of other countervailing considerations to the “benefits” the proposals would bring.”

“1. The proposed development by reason of its excessive size, massing bulk and site coverage would result in disproportionate additions to the original dwelling house and would reduce the openness of the site in the Green Belt. The proposal would constitute inappropriate development in the Green Belt, and no very special circumstances have been demonstrated by the applicant whereby the harm, by reason of inappropriateness is outweighed by other material considerations. The proposed would therefore be detrimental to the character and appearance of the Green Belt and the Harrow Weald Ridge Area of Special Character contrary to National Planning Policy Framework (2012), policy 7.16 of the London Plan (2011), policies CS1.F and CS6.A of the Harrow Core Strategy (2012) and policies DM6 and DM16 of the Development Management Policies Local Plan (2013).

2. The proposed development, by reason of its overall increase in height and scale, unacceptable roof design, the design of the linked garage and the overall decorative and ornate design and appearance along the frontage and modern design to the rear, would result in a development which is unduly bulky and visually obtrusive and at odds with the simplistic semi-rural character and appearance of the Pinner Hill Estate Conservation Area. The proposal would therefore fail to preserve or enhance the character and appearance of Pinner Hill Estate Conservation Area contrary to the policies contained in the National Planning Policy Framework (2012), policies 7.4B and 7.8 C/D of The London Plan (2011), Core Policy CS 1 of the Harrow Core Strategy (2012), policies DM1 and DM7 of the Development Management Policies Local Plan (2013) and the adopted Supplementary Planning Document: Pinner Conservation Areas – Appendix 9: Pinner Hill Estate Conservation Area Character Appraisals and Management Strategy (2009).

3. The Applicant has failed to provide sufficient information in respect of the proposed miscellaneous plant extraction and air source heat pump condensers to enable the Local Planning Authority to assess the potential impact of such equipment on the character and appearance of the conservation area and the residential amenities of the neighbouring occupiers at Highfield in terms of noise and disturbance. In the absence of such, it is not possible to determine whether the proposal would give rise to any conflict with the National Planning Policy Framework (2012), policies7.4B, 7.8C/D and 7.15B of The London Plan 2011 and policies DM1 and DM7 of the Development Management Policies Local Plan (2013).

4. Notwithstanding the tree report submitted with this application, the applicant has failed to provide a site wide and site specific tree impact assessment, protection plan and detailed method statement in line with British Standard BS5837:2012. In the absence of which, the Local Planning Authority is unable to assess the potential impact of the proposal on the survival of the trees on or close to the site. The proposal could therefore prejudice the survival of protected trees on or close to the site of amenity value to the detriment of the visual amenity of the area contrary to policy 7.21B of The London Plan (2011) and policy DM22 of the Development Management Policies Local Plan (2013)”.

In the event the Inspector found for the claimants on the issues at iii) and iv).

“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:

81. Once Green Belts have been defined, local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities for outdoor sport and recreation; to retain and enhance landscapes, visual amenity and biodiversity; or to improve damaged and derelict land.

82. The general extent of Green Belts across the country is already established. New Green Belts should only be established in exceptional circumstances, for example when planning for larger scale development such as new settlements or major urban extensions. If proposing a new Green Belt, local planning authorities should:

83. Local planning authorities with Green Belts in their area should establish Green Belt boundaries in their Local Plans which set the framework for Green Belt and settlement policy. Once established, Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan. At that time, authorities should consider the Green Belt boundaries having regard to their intended permanence in the long term, so that they should be capable of enduring beyond the plan period.

84. When drawing up or reviewing Green Belt boundaries local planning authorities should take account of the need to promote sustainable patterns of development. They should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary.

85. When defining boundaries, local planning authorities should:

86. If it is necessary to prevent development in a village primarily because of the important contribution which the open character of the village makes to the openness of the Green Belt, the village should be included in the Green Belt. If, however, the character of the village needs to be protected for other reasons, other means should be used, such as conservation area or normal development management policies, and the village should be excluded from the Green Belt.

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:

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:

91. When located in the Green Belt, elements of many renewable energy projects will comprise inappropriate development. In such cases developers will need to demonstrate very special circumstances if projects are to proceed. Such very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources.

92. Community Forests offer valuable opportunities for improving the environment around towns, by upgrading the landscape and providing for recreation and wildlife. An approved Community Forest plan may be a material consideration in preparing development plans and in deciding planning applications. Any development proposals within Community Forests in the Green Belt should be subject to the normal policies controlling development in Green Belts.”

“Inappropriateness

5. The National Planning Policy Framework (the Framework) sets out in paragraph 89 that the construction of new buildings is regarded as inappropriate but provides exceptions to that general premise, which include 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, and the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces.

6. Dealing firstly with the replacement proposal, the relevant test is whether the replacement dwelling would be materially larger than the one it replaces. This is a reference to size, and the Court of Appeal in R (oao Heath and Hampstead Society) v Camden LBC & Others [2008] EWCA Civ 193 , held that size is the primary test, rather than visual impact. Thus, the appellants’ contention that it is “visual footprint” that is a key determinant is not consistent with this legal authority.

7. Size can be assessed in a number of ways, but the Court held that floorspace is an important indicator. The proposed replacement dwelling would be built on much of the floorprint of the existing house, but its floorspace would be substantially greater as a result of a much larger basement area, garage and second floor. The Council’s calculation is that the increase in floorspace would be 57% over the existing dwelling (including the existing garage), and this appears to be to be about right. It is not appropriate to take into account the removal of outbuildings when assessing changes in size, as outbuildings do not form part of the original dwelling and could be replaced under permitted development rights.

8. Moreover, the overall bulk of the building would be greatly increased as a result of the much larger roof, which would bring about a significant increase in the height of the accommodation within the roofspace, and that of the larger garage and swimming pool building. In my view, this would result in the proposed replacement being materially larger than the house it would replace, and thus it would amount to inappropriate development.

9. In respect of the proposed extensions and alterations, for the same reasons as I have given above, the enlargement would be disproportionate, amounting to well over half the floorspace again over the original dwelling and garage. It follows therefore that the proposal must be considered to be inappropriate development.

10. The appellants have referred me to other permissions granted by the Council and by others. In respect of Cornerways, I have not been provided with all of the details but the part of the officer report quoted makes it clear that the officers assessed visual impact in respect of openness and the visual amenity of the Green Belt. There is no discussion about whether the development would be a disproportionate addition, although the figures provided by the appellants suggest that the proposal in that case would be a considerable increase in size. If that is the case, it would appear that the law as set down by the Hampstead judgement was not applied, and therefore I can only afford it limited weight. The Council indicates that it has taken a consistent approach on disproportionate development elsewhere, although I have insufficient information to judge whether this is the case.

11. The planning permission for Willow Mead is said to have involved a footprint increase of 52%, which on the fact of it, sounds like a substantial addition, but as in this case, height and bulk also play a role in assessing size, and there is insufficient information before me to enable me to conclude that the Council approved a disproportionate extension, or whether there were very special circumstances which justified it.

12. The appellants referred me to an appeal decision in respect of Walnut Burrow, Loudwater Drive, Loudwater, Rickmansworth in Three Rivers District Council’s area (Ref: APP/P1940/E/2080040 & 2080048). The appellants say that this site was in the Green Belt, but the Inspector makes no reference to the Green Belt, and it was not a matter that was at issue. It therefore find this case to be of no relevance insofar as Green Belt considerations are involved.

13. I attach very little weight to the comparison of the appear site with other properties in the area and their relationship to their plot sizes, as inappropriateness is more a question of the increase in size in relation to the original dwelling, rather than in relation to the site context.

14. I have been referred to guidance issued by Sevenoaks District Council in relation to extensions of dwellings in the Green Belt, but I can only give this very limited weight because it is for each local authority to adopt its own policies, albeit that they must be consistent with national guidance, and it would not be appropriate to apply others’ policies to this case.

15. The Council allowed two dwellings on the site in 1990, although the permission was not implemented. I can draw little from this, as I do not know enough about the size of the dwellings permitted in relation to what stood there before, what the relevant development plan policies were in force at that time, or whether there were any other material consideration. Moreover the decision precedes the Hampstead judgment referred to above.

16. I therefore conclude on the first main issue that both proposals amount to inappropriate development in the Green Belt, which is by definition harmful. The proposals would also conflict with Policy 7.16 of the London Plan (2011), Policy CS1.F of the Harrow core Strategy (2012) (CS) and Policies DM6 and DM16 of the Development Management Policies Local Plan (2013) (DMPLP), all of which deal with, or include, Green Belt considerations.

17. The Council alleges a conflict with CS Policy CS6.A in respect of this issue, but this policy does not relate to Green Belt considerations and I find no conflict in this regard.”

“The effect on openness

18. “Openness” is not defined either in the Framework or in any development plan policies, but I take it to mean an absence of building or development, and the extent to which a building or development may be seen from the public realm is not a decisive matter. The proposals would result in an increase in the scale of building through the greater height and bulk of the roof of the dwelling and from the larger garage. This would result in a net increase in the amount of built development on the site, even when taking into account the buildings which would be removed from the site.

19. The loss of openness would be limited. However, the Framework says that the essential characteristics of Green Belts are their openness and their permanence, and therefore I attach significant weight to even the limited loss of openness that would occur in this instance. I therefore conclude that the proposals would result in a harmful loss of openness and would conflict with DMPLP Policy DM16.”

“Balancing Exercise

38. I have found that the proposals would result in harm from inappropriateness as well as harm to the openness of the Green Belt. However, I have found no material harm would result to the character and appearance of the area or to the living conditions of neighbours. I also attach some weight to the benefit that the proposals would bring in providing a modern, emergency-efficient dwelling which would meet the personal needs of the appellants and their family.

39. Although the harm that would result to openness would be limited, the Framework says that when considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. It goes on to say that 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.

40. The benefits that the proposal would bring are not so great that they clearly outweigh the harm to the Green Belt that I have identified. Accordingly very special circumstances to justify the development do not exist in these cases.”

“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at page 28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No 2) [2004] w WLR 1953, at p 1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p 780F-H. and, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6)”.

“6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8. Moreover, the Inspector’s conclusions will invariably be based not merely upon the evidence heard at any inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be though that the basic principles set out above are so well known that they do not need restating. But the Claimant’s challenge in the present case, although couched in terms of Wednesday unreasonableness, is, in truth, a frontal assault upon the Inspector’s conclusions on the planning merits in this Green Belt case.”

“22. The judge was faced with the (to my mind) extreme submission that the term “materially larger” was to be judged “exclusively” by reference to “floor space”, so that such matters as height, bulk and massing, and positioning on the site, were irrelevant. Not surprisingly, be rejected that submission:

‘In most cases floor space will undoubtedly be the starting point, if indeed it is not the most important criterion.’

But I entertain no doubt that the concept of whether the welling is “materially larger” can be assessed by reference to matters such as bulk, height, mass and prominence. These are all matters going to the openness of the Green Belt. They are plainly all material considerations relevant to deciding on the meaning of the term in context in which it arises, namely Green Belt policy.

Indeed, were it otherwise, absurd results could arise. One could have equivalent or possibly even reduced floor space, but disposed within a tower-like structure, having far more impact on the Green Belt. It would give a strange result, in my judgment, if an inspector were debarred from concluding that the proposed structure harmed openness and was inappropriate development.’

23. That decision seems to me with respect undoubtedly right, but it is of little help in the present case. In that case it was held at a small increase in floor space in absolute terms could be judged “material” in planning terms, because of the design of the building and its position on the site. The converse does not necessarily follow. The case is no authority for the proposition that design and location can procure the result that a very large increase in absolute terms, as here, is to be treated as “not material”….

….37. The words “replacement” and “not materially larger” must be read together and in the same context. So read, I do not think that the meaning of the word “material”, notwithstanding its use in planning law more generally, can bear the weight which the authority sought to give it. Size as Sullivan J said is the primary test. The general intention is that the new building should be similar in scale to that which it replaces. The Surrey Homes case illustrates why some qualification to the word “larger” is needed. A small increase may be significant or insignificant in planning terms, depending on such matters as design, massing and disposition on the site. The qualification provides the necessary flexibility to allow planning judgment and common sense to play a part, and it is not a precise formula. However, that flexibility does not justify stretching the word “materially” to produce a different, much broader test. As has been seen, where the authors of PPG2 intend a broader test. The intention is clearly expressed”.

“This would result in a net increase in the amount of built development on the site, even when taking into account the buildings which would be removed from the site”.

The claimants complain that the Inspector failed to consider whether those increases would materially affect the openness of the views compared with the existing situation. The claimants suggested that the Inspector left out of account a material consideration, as the increases do not, it was suggested by the claimants, automatically reduce openness. Again in my judgment the Inspector recognised that the loss of openness would be limited (see paragraph 19 and also at paragraph 28, in dealing with character and appearance (in which he found in favour of the claimants) that most of the development would not be visible (other than from an aerial position)):

“28. The Council also argues that the use of a section of crown roof would be alien to the more traditional pitched roofs found in the area. However, the house at Potter’s End, a large house on an adjoining plot also has a crown roof. Moreover, it is almost impossible to discern that the building has a crown roof other than from an aerial position, and the same would also apply to the appeal building. I consider that the use of a crown roof would not be harmful to the character and appearance of the area”.

Thus in reaching his conclusion that it was appropriate to attach significant weight to the limited loss of openness he did have regard to the fact that most of the development would not be visible but nevertheless exercised, as he was entitled to do, a planning judgment consistent with paragraph 88 of the NPPF. There is no merit in this ground.

“- failed to distinguish between definitional harm and actual harm;

- failed to consider the impact of either proposal on the purposes served by the section of Green Belt in which the appeal site is situated;

- limited his considerations of other countervailing considerations to the “benefits” the proposals would bring.”

“38. I have found that the proposals would result in harm from inappropriateness as well as harm to the openness of the Green Belt. However, I have found no material harm would result to the character and appearance of the area or to the living conditions of neighbours. I also attach some weight to the benefit that the proposals would bring in providing a modern, energy-efficient dwelling which would meet the personal needs of the appellants and their family.

39. Although the harm that would result to openness would be limited, the Framework says that when considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. It goes on to say that very special circumstances will not exist unless the potential harm to the Green Belt by reason of appropriateness, and any other harm, is clearly outweighed by other considerations.

40. The benefits that the proposal would bring are not so great that they clearly outweigh the harm to the Green Belt that I have identified. Accordingly very special circumstances to justify the development do not exist in these cases.”

“35 The need for Green Belft harm and other harm to be clearly outweighed has been emphasised by Mr Justice Sullivan (as he then was) in Doncaster NBC v Secretary of State [2002] EWHC 808 at paragraph 67 and 70 of his judgment and by the Court of Appeal in Wychavon District Council v Secretary of State [2008] EWCA Civ 692 (at paragraph 26) endorsing the formulation in Doncaster which at paragraph 70 read as follows:

“Given that inappropriate development is by definition harmful, the proper approach is whether the harm by reason of inappropriateness and the further harm, albeit limited, cause to the openness and purpose of the Green Belt, was clearly outweighed by the benefit to the appellant’s family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.”

I am satisfied that both definitional and actual harm were considered and the approach adopted by the Inspector was lawful.”

“10.3.4 The Inspector failed also to identify the purpose(s) served by the section of Green Belt in which the proposed developments were situated and to take into account whether either development would compromise the purpose(s) served by that section of Green Belt. Such consideration is plainly a material; factor in assessing VSCs.”

A reading of paragraph 19 of the decision letter demonstrates that the Inspector did direct himself to the essential characteristics of Green Belt, essentially reflecting paragraph 79 of the NPPF. No “Green Belt” submissions were made on behalf of the claimants to the Inspector. I reject any suggestion that it was incumbent on the Inspector to go through each of the 5 bullet points at paragraph 79. His approach was lawful and consistent with paragraph 79. As is made clear at paragraph 79 of the NPPF openness is an essential characteristic of the Green Belt protected by the policy.

“It goes on to say that 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”.

Paragraph 40 is his conclusion, having lawfully carried out the balancing exercise at paragraphs 38 and 39.