Baynham v Secretary of State for Communities And Local Government & Anor

The Claimant challenges the decision dated 30 January 2017 of S.J. Buckingham, an Inspector appointed by the First Defendant, to dismiss the Claimant’s appeal under s.78 of the Town & Country Planning Act 1990 (“the 1990 Act”) against the Second Defendant’s refusal of planning permission for the change of use and conversion of an existing barn (“the barn”) to a single dwelling house at Flanbury Oaks, Ashendene Road, Bayford (“the appeal site”).

The appeal site comprising the barn and its driveway is around 1km outside Bayford, and is located within the Metropolitan Green Belt. The Inspector records in the decision letter (“DL”) that it is “a single storey shed of utilitarian blockwork construction, currently in use for storage and as a workshop. It is set back some metres along its own track from Ashendene Road to the east, and adjoins a detached house, now known as Bucks Warren. There is a raised rubble and gravelled area to its south; while on the eastern part of the site are a number of temporary structures” (DL4).

The DL continues:

“… It looks over rolling countryside to the north and west, while to its south it adjoins the hedgerow lining the track leading to Bucks Farm. The countryside around is scattered with individual or small groups of houses and large agricultural buildings.” (DL5).

Collins J granted permission on 15 May 2017.

The National Planning Policy Framework (“NPPF”) provides, so far as is relevant, for “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;

…

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 in villages, and limited affordable housing for local community needs under policies set in the Local Plan; or

•

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;

•

…

•

…

•

the re-use of buildings provided that the buildings are of permanent and substantial construction; …”

In Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at para 19 Lindblom J (as he then was) summarised the law on the approach to decisions of Inspectors in “seven familiar principles”:

“(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 p.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 anr v Porter (No.2) [2004] 1 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 Ltd 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 nor 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 the Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17-22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he deals with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, in South Somerset District Council v Secretary of State for the Environment [1993] 66 P&CR 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea Land Power and Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ in Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, at paragraphs 12-14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, at p.145).”

In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath JSC said at para 25:

“… the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the planning inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local.”

In Arsenal Football Club plc v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin), Cranston J said at para 33:

“… the appellate body should not be expecting that the decision will necessarily flow in a linear manner, part by part, paragraph by paragraph, with the conclusion at the end. That would be a counsel of perfection. The reality is that the decision may have been reached by considering the material as a whole and not by a stage by stage process, each stage considered in isolation. Thus in putting pen to paper a statement at a particular part of the decision may be based not only on what comes before it but it may anticipate what follows. It is artificial to expect the written decision to proceed paragraph by paragraph if the conclusion itself derived from a far from logical process. What is required is that the decision be read in good faith and understood as a whole.”

The Inspector indentified the main issues in the appeal (DL2):

•

“whether or not the development would be inappropriate development in the Green Belt having regard to the National Planning Policy Framework and any relevant development plan policies;

•

the effect of the development on the openness of the Green Belt;

•

whether any harm by reason of inappropriateness and any other harm would be clearly outweighed by other considerations, and if so, whether this would amount to the very special circumstances necessary to justify the proposal.”

The Inspector recorded the terms of NPPF para 90 at DL7:

“The National Planning Policy Framework (the Framework) at paragraph 90 advises that certain forms of development are not inappropriate within the Green Belt provided that they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt. One of these forms of development is the re-use of buildings provided that the buildings are of permanent and substantial construction.”

The Inspector noted that “the appeal building is of such construction” (DL7).

However the Inspector did not accept that the proposal would satisfy the proviso in NPPF para 90 as it would conflict with the fundamental aim of Green Belt policy of preventing urban sprawl (see NPPF para 79). At DL9 and DL10 she stated:

“9.

The appeal proposal would insert a new domestic use into a building formerly in low intensity use either as an outhouse or, now, for storage. It would thereby extend domestication into land which was formerly ancillary to domestic purposes and would, as a result, conflict with the fundamental aim of preventing urban sprawl. It would therefore constitute inappropriate development in the Green Belt. In accordance with paragraphs 87 and 88 of the Framework I give this significant weight.

10.

The Appellant is willing to contain the amenity space for the dwelling to the south-west of the appeal building in an area partially screened by planting and to accept a condition limiting permitted development rights for extensions, outbuildings and means of enclosure. However I consider that this would not prevent other domestic paraphernalia such as garden furniture, washing line or dryers, children’s play equipment etc appearing around the dwelling, and would not therefore counteract the inappropriate introduction of a new domestic use into the Green Belt.”

At DL11 the Inspector considered the effect of the proposed development on openness:

“The development would not include any addition to the volume of the existing building, and would not result in any further loss of openness as a result of the alterations. I note the willingness of the applicant to accept a condition restricting permitted development rights for the enlargement of the dwelling, new structures within its curtilage or new means of enclosure. However, this would not prevent increased parking or other forms of domestic paraphernalia which would have some effect on openness, although this would remain limited in extent. Overall, therefore, the development would cause only minor harm to the openness of the Green Belt.”

The Inspector found that the very special circumstances test was not satisfied. DL14 states:

“Paragraph 87 of the Framework indicates that inappropriate development is, by definition, harmful to the Green Belt, and should not be approved except in very special circumstances. There would also be harm, albeit limited, in respect of the effect of the development on openness. Although there are some limited benefits to be gained from the provision of an additional dwelling designed in a rural idiom, and in the sustainability of re-using the existing structure, these benefits are small and I accordingly give them only limited weight. As therefore the harm is not clearly outweighed by other considerations, the very special circumstances required to allow inappropriate development in the Green Belt do not exist.”

Mr Timothy Comyn, for the Claimant, advances three grounds of challenge:

Mr Comyn submits that the Inspector has given no or no intelligible reasons for her decision that the proposed re-use of the existing barn would “conflict with the fundamental aim of preventing urban sprawl” (DL9). She does not identify any large built-up area, the checking of the unrestricted sprawl of which would be adversely affected (NPPF para 80, first bullet point) by the proposed re-use of the existing barn; nor does she say how such a re-use would effect any ‘urban sprawl’ into the countryside (described in DL5). The Inspector’s determination that it would is not founded on any evidence.

Mr Comyn accepts that NPPF Green Belt policy is the relevant policy and that the Inspector correctly recorded the proviso (DL7). However he criticises her for focussing on the aim of the policy (para 79, see DL7), rather than applying her mind to the application of the proviso. The purpose of the Green Belt policy, material to the present case, is identified in NPPF para 80 at the first bullet point. However she does not say how a single dwelling house such as this can be regarded as urban sprawl.

The import of DL7 and DL9, Mr Comyn submits, is that (1) while the Inspector acknowledges that the re-use of an existing building in the Green Belt is capable of being “not inappropriate development” within NPPF 90, (2) she proceeded to make her decision on the basis of an erroneous understanding that the re-use of an existing building in the Green Belt as a dwelling is “axiomatically” incapable of being “not inappropriate development” within the paragraph.

Further, whilst purporting to apply the proviso in paragraph 90 at DL9, the Inspector makes no reference to whether or not the proposal preserves the openness of the Green Belt, nor to the material purpose of including land in Green Belt at para 80 (first bullet point).

Mr Comyn points out that in the penultimate sentence in DL9 the Inspector expresses a conclusion with regard to inappropriate development. It follows, Mr Comyn contends, that in DL10 and DL11 she is turning to consider whether the Claimant can demonstrate “very special circumstances” (which she goes on to consider specifically at DL14). However the first sentence in DL11 which is directed to considering whether the development would include any addition to the volume of the existing building and result in any further loss of openness is a matter that the Inspector should have had regard to when applying the proviso.

I reject these submissions. The Inspector explained in the DL why the proposed development conflicts with the fundamental aim of Green Belt policy which is to prevent urban sprawl by keeping land permanently open. I consider the Inspector’s reasons to be intelligible and adequate, enabling the parties to understand why the appeal was decided as it was, and what conclusions were reached on the main issues in the dispute.

At DL4 and DL9-11 the Inspector identified the impact of the proposed development relevant to the issue of urban sprawl. The shed is currently used for storage and as a workshop (DL4). The proposal “would insert a new domestic use into a building formerly in low intensity use… It would thereby extend domestication into land which was formerly ancillary to domestic purposes” (DL9). Further, the condition proposed by the Claimant would not prevent “other domestic paraphernalia such as garden furniture, washing line or dryers, children’s play equipment etc appearing around the dwelling” (DL10; and see DL11). DL9 and 10, read together, show why the Inspector considered that this proposal would lead to urban sprawl. In DL10 the Inspector is expanding upon the conclusions she reached in DL9.

DL7 correctly refers to “the re-use of buildings” (para 90, fourth bullet point). That plainly does not exclude re-use for domestic use. The Inspector does not say at DL9 that domestic re-use would necessarily be inappropriate, as the Claimant suggests it does.

I accept the submission of Mr Hugh Flanagan, who appears for the First Defendant, that the Inspector did not need to identify a particular built-up area. The Green Belt necessarily adjoins urban areas, and the purpose of the Green Belt policy is to control their sprawl. It cannot be said that because this proposed development concerns a single dwelling that the Green Belt policy to prevent urban sprawl has no application. I note that such a contention did not form part of Mr Comyn’s oral submissions.

The proviso in para 90 has two aspects to it: first, preserving the openness of the Green Belt; and second, not conflicting with “the purposes” of including land in Green Belt. I agree with Mr Flanagan that consideration of the second aspect necessarily takes the decision maker back to paras 79 and 80 where the purposes of the Green Belt are identified. That being so, the Inspector cannot be criticised for focussing on para 79 in DL4-10 where she considers the purposes of the Green Belt and, in particular, preventing urban sprawl. At DL11 the Inspector considers the other aspect of the proviso, namely preserving openness.

NPPF paras 79 & 80 together deal with Green Belt policy purposes. In Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government [2014] PTSR 1471, Richards LJ at para 2, referring to paras 79-92 of the NPPF, explains the relationship between paras 79 and 80:

“Para 79 states that 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. Para 80 provides more specifically that Green Belt serves five purposes which include [checking the unrestricted sprawl of built up areas].”

Having concluded that the proposed development would conflict with the fundamental aim of Green Belt Policy preventing urban sprawl and therefore constitute inappropriate development in the Green Belt, the Inspector cannot be criticised for going on to consider the other aspect of the proviso in para 90 separately in DL11. Her conclusion in DL9 that the development would be inappropriate did not depend on a finding that the development would also not preserve the openness of the Green Belt. Nevertheless in DL11 the Inspector refers again to domestic paraphernalia which would, in her view, have some effect on openness, albeit limited in extent. Reading DL4-11 as a whole it is clear that the Inspector had regard to the effect of the development on openness when considering the proviso in para 90; and she also properly had regard to it when considering whether there were “very special circumstances” in DL14.

I am left in no doubt that Ground 1 is not made out.

Mr Comyn describes this ground of challenge as another facet to Ground 1.

The Inspector has not, he submits, addressed para 90 at all. This is not correct. At DL7, as Mr Comyn acknowledges, the Inspector correctly records the terms of the policy. She accepted that the proposal would constitute re-use of a building of permanent and substantial construction within the fourth bullet point of para 90. Then at DL8-10 she addressed her mind to the policy, applied it and analysed the impacts of the appeal proposal and concluded that the proposal would conflict with the fundamental aim of Green Belt policy of preventing urban sprawl. I agree with Mr Flanagan that that is a clear conflict with the purposes of including land within the Green Belt (see NPPF79-80), in breach of the proviso in para 90.

In conducting the exercise that she did, which was one of planning judgment, the Inspector found that the proposed development did not satisfy the test in NPPF para 90. What she did not find was, as the Claimant contends, that residential re-use of an existing building was “axiomatically incapable” (see para 17 above) of being appropriate development within para 90.

Mr Comyn further submits that DL8-11, read as a whole, demonstrate that the Inspector did not address the “more complex question” required to be addressed. Having regard to the fact that the building already exists, she should have considered whether there are any good reasons for finding that its proposed re-use would not preserve the openness of the Green Belt or would conflict with the purpose of including land in Green Belt; instead she wrongly approached her decision making on the basis that the re-use and conversion of the existing barn for domestic purposes was, in principle, inappropriate development in the Green Belt in the absence of proof to the contrary.

In Europa Oil and Gas Ltd, a case that concerned whether the inspector had erred in finding that the proposed development did not constitute “mineral extraction” within para 90 of the Framework and so necessarily amounted to inappropriate development, Richards LJ observed at para 36:

“… any correct analysis of the proviso to para 90 of the NPPF has to start from the … premise that exploration can be appropriate, i.e. that there is nothing inherent in such development that would necessarily compromise the objectives in the proviso. Were it otherwise, the proviso would always negate the appropriateness of such development in the Green Belt and would simply make the policy pointless.”

Richards LJ continued at para 37:

“… One relevant factor, of particular importance to the thinking that makes mineral extraction potentially appropriate, is the duration of development and the reversibility of its effects. Another is the fact that extraction of minerals, including exploration, can only take place where minerals are found or may be found. Whether development that is capable of being appropriate for the purposes of para 90 is in fact appropriate is a more complex question than the consideration of the effect on the Green Belt where development has already been concluded to be inappropriate.”

Mr Comyn submits that just as Richards LJ had regard to the rationale for the inclusion of mineral development in NPPF para 90, so regard should be had in the present case to the factors of importance to the thinking that makes “the re-use of buildings, provided that buildings are of permanent and substantial construction” potentially appropriate development in the Green Belt.

In this connection Mr Comyn suggests that regard should be had to former Planning Policy Guidance 2 (“PPG2”), in particular paras 3.7-3.9 (see R (Timmins) v Gedling Borough Council [2015] EWCA Civ 10at paras 24 and 28; and John Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466, per Sales LJ at para 21). Para 3.7 of PPG2 states: “With suitable safeguards, the re-use of buildings should not prejudice the openness of Green Belts, since the buildings are already there”.

Mr Flanagan invites me to resist the suggestion that the Inspector was required to take into account PPG2. I agree that there is no such requirement. In John Turner Sales LJ said at para 21:

“The NPPF was introduced in 2012 as a new, self-contained statement of national planning policy to replace the various policy guidance documents that had proliferated previously. The NPPF did not simply repeat what was in those documents. It set out national planning policy afresh in terms which are at various points materially different from what went before. This court gave guidance regarding the proper approach to the interpretation of the NPPF in the Timmins case at para [24]. The NPPF should be interpreted objectively in accordance with the language used, read in its proper context. But the previous guidance – specifically in Timmins, as in this case and in Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; … to which the court in Timmins referred, the guidance on Green Belt policy in PPG2 – remains relevant. In particular, since in promulgating that NPPF the Government made it clear that it strongly supported the Green Belt and did not intend to change the central policy that inappropriate development in the Green Belt should not be allowed, section 9 of the NPPF should not be read in such a way as to weaken protection for the Green Belt: see the Redhill Aerodrome case at [16] per Sullivan LJ, quoted in Timmins at [24].”

If recourse to PPG2 in the context of a dispute over the interpretation of the NPPF has the potential to assist, then regard may be had to it. However, the meaning of the fourth bullet point in para 90 is clear. Para 3.7 of PPG2 does not add anything. The rationale behind the fourth bullet point in NPPF para 90 is not in dispute.

I am satisfied that at DL4-11 (for the reasons I have set out in relation to Ground 1) the Inspector properly interpreted and applied NPPF para 90.

Mr Comyn describes para 90 as containing a “closed list” of forms of development capable of being not inappropriate in the Green Belt. He refers to Fordent Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2844, and the judgment of Richards LJ in Timmins in support of this contention. However it is not necessary for me to decide this point, and Mr Flanagan asks me not to do so.

This ground arises from DL8, where the Inspector stated:

“The appellant suggests that the appeal building remains within the domestic curtilage of Bucks Warren. Although the boundary between the two was largely open at the time of my site visit I note from the former appeal decision and photographs submitted by the appellant case that it was formerly much more clearly defined by planting, which has now been cleared. In any case, the appellant also indicates that the ownership of the two elements of the site is now split.”

Mr Comyn submits that in deciding that the extent to which the barn had been used in the past for domestic purposes and its present ownership were relevant considerations to her decision, the Inspector had regard to matters that were irrelevant to her decision as to whether the proposed future use of the existing barn as a dwelling would constitute “not inappropriate development” in the Green Belt within NPPF para 90. The issues of previous ownership and use had been raised by the appellant in the appeal proceedings, but that was not material when considering the Inspector’s error of law.

I do not consider that the Inspector can be criticised for addressing a point raised by the appellant. In so doing she refers to the open nature of the boundary and to ownership of the two elements of the site being now split. I agree with Mr Flanagan that both these matters are relevant to the issue of the extent of curtilage.

In any event, as Mr Flanagan submits, the extent of the curtilage and the currently largely open boundary between the barn and the house were relevant to the issue of extending domestication, to which the Inspector properly had regard in DL9-10.

For the reasons I have given, none of the grounds of challenge succeed. Accordingly this claim is dismissed.