Alteration to green belt boundary — Land outside green belt in previous statutory development plan — Recommendation by inspector to include land in green belt accepted for local plan — Whether alteration of boundary of green belt requires ‘exceptional circumstances’ — Meaning of Circular 14/84
The appellants
own 13 acres of open land at Puxton Lane, Kidderminster. This land, together
with further open land, a river and a canal, formed a ‘wedge’ of undeveloped
land between two areas of residential development. By amendment no 22 to the
1975 development plan their land was excluded from the green belt. The draft
local plan published in May 1986 did not include the land in the green belt
but, following a request by the county council, the respondent local planning
authority altered the boundary to include it. The appellants’ objection to the
inclusion of their land in the green belt was not accepted by the inspector who
reported on the plan. His recommendation that the local plan should be amended
to include the land in the green belt was accepted by the respondent local
planning authority. The appellants challenged the validity of the Wyre Forest
urban areas local plan in so far as it included their land in the green belt
under section 244 of the Town and Country Planning Act 1971 (section 287 of the
Town and Country Planning Act 1990). Otton J dismissed the application, (1990)
61 P&CR 57.
The appellants
appealed from the decision of Otton J submitting that neither the inspector nor
the respondents in approving his recommendations had had regard to ministerial
policy in Circular 14/84, para 3(a): ‘. . . detailed Green Belt
boundaries defined in adopted local plans or earlier approved development plans
should be altered only exceptionally.’
The respondents conceded that there were no exceptional circumstances.
The
respondents were not bound by ministerial policy in a circular or a PPG but
were required to have regard to these documents: see p 88G. It was common
ground that neither the inspector nor the respondents had had regard to
Circular 14/84. The extension of the green belt to include the appellants’ land
was therefore an alteration to an earlier development plan. The general concept
of the advice in the circulars is that once a green belt has been established
and approved as a result of the normal statutory process it must require
exceptional circumstances rather than general planning concepts to justify an
alteration: see pp 93-94. This accords with the plain reading of the words
‘altered’ and ‘alteration’ in para 3(a) of the circular: see p 94E.
to in the judgments
Gransden
(EC) & Co Ltd v Secretary of State for the
Environment (1985) 54 P&CR 86; [1986] JPL 519
Appeal against
decision of Otton J
This was an
appeal against the decision of Otton J (March 7 1990) who dismissed an
application by the appellants, Carpets of Worth Ltd, under section 244 of the
Town and Country Planning Act 1971 (section 287 of the Town and Country
Planning Act 1990) to challenge part of the local plan made by the respondents,
Wyre Forest District Council.
and Joseph Harper (instructed by Marriott Harrison Bloom & Norris) appeared
for the appellants, Carpets of Worth Ltd.
Wilson-Smith QC and Philip Mott (instructed by the solicitor to Wyre Forest
District Council) appeared for the respondents.
following judgments were delivered.
PURCHAS LJ: This is an appeal by Carpets of Worth Ltd (‘Worth’) from an order of
Otton J made on March 7 1990 dismissing their application under section 244 of
the Town and Country Planning Act 1971 (section 287 of the Town and Country
Planning Act 1990). Worth seek to challenge part of the local plan made by Wyre
Forest District Council which affected their land at Puxton Lane,
Kidderminster. The appeal raises a single issue of importance touching upon the
effect to be given to a provision of Circular 14/84, entitled Green Belts,
issued by the Secretary of State for the Environment, to whom and to whose
predecessors in office I shall refer as ‘the minister’. It is common ground
between Mr Christopher Wilson-Smith QC, who appeared for the council, and Mr
Brian Ash QC, who appeared for Worth, that if the construction to be given to
para 3(a) of that circular is that for which Mr Ash contends, this
appeal succeeds but if the construction for which Mr Wilson-Smith contends
succeeds, then the appeal must fail.
The position
as thus agreed by counsel would appear happily to restrict the area for
consideration by the court. It is accepted by both parties that in the exercise
of their function as a local planning authority the council must have regard to
‘the provisions of circulars and similar documents called planning policy
guidance (PPGs) issued by the minister’. These documents announced the policy
of the minister on the particular topics to which the circulars or PPGs were
directed. The statutory basis for the proposition that these documents must be
considered is to be found in section 11(9) of the 1971 Act:
In
formulating their proposals in a local plan the local planning authority shall
secure that the proposals conform generally to the structure plan as it stands
for the time being (whether or not it has been approved by the Secretary of
State) and shall have regard to any information and any other considerations
which appear to them to be relevant, or which may be prescribed, or which the
Secretary of State may in any particular case direct them to take into account.
‘Prescribed’
means prescribed by regulations made by the Secretary of State under the Act
(see section 290(1)). The expression ‘Directions in any particular case’ has
not been defined either statutorily or by authority and there must be some
doubt as to whether it can embrace circulars or PPGs. For the purpose of this
judgment I shall assume that it does not. The current views of the minister as
expressed in the circulars and the PPGs can only be material to the duties upon
the council under section 11(9) as being ‘any information and any other
considerations which appear to them to be relevant’.
Prior to the
coming into effect of the code provided by the 1971 Act planning authorities in
the counties (ie the county councils) had the responsibility of preparing
development plans for their respective areas. These descended to detail only as
to boundaries and areas but were supplemented by local town plans where
appropriate. The development plans, inter alia, defined where the
boundaries should be drawn between the green belt areas and areas zoned for
other types of development. The green belt policy and the related development
control policies were introduced in 1955.
Under
provisions of Part II of the 1971 Act it was the duty of the local planning
authority, which in the present case was Hereford and Worcester County Council,
to prepare a structure plan. The statutory provisions requiring the appropriate
survey, consultation etc leading to the submission of the draft structure plan
by the county council to the minister for approval or
with the subsequent alteration of structure plans once approved. The provisions
relating to the preparation of local plans are contained in sections 11 to 15
of the 1971 Act. The preparation of a local plan was generally speaking a
voluntary matter depending upon the decision of a local planning authority,
which could be either the county council or a district council within the
county: see section 3 of the 1971 Act.
Worth’s land
at Puxton Lane, Kidderminster, was effectively divided into two sections. The
southern part of about seven acres was at all material times occupied by their
factory and warehouse premises. The northern part, consisting of some 13 acres
or thereabouts, was open land lying immediately to the west of the River Stour.
This appeal is concerned solely with the northern part. On the east side of the
River Stour, speaking in very rough terms, lay further open ground between the
river and the Staffordshire and Worcestershire canal, and further to the east
was urban open development such as playing fields etc, before the residential
development of Kidderminster, even further to the east, was reached. There was
also to the west of the site residential development of Kidderminster. Again
speaking in very general terms, the open-type development, the river, canal and
other land formed an ‘inlet’ of undeveloped land between the eastern and
western residential developments.
This has been
described as a ‘wedge’ and I shall refer to it as such hereafter in this
judgment. The word ‘wedge’ although used in planning parlance is not a term of
art and has no statutory significance.
The
development plan had been prepared by Worcestershire County Council under the
pre-1971 legislation. It showed a green belt area running generally north of
Kidderminster. It was subject to a number of amendments. The relevant amendment
for this appeal was amendment no 22 which was approved in 1977. This showed the
southern boundary for the green belt to the north of Kidderminster as running
east to west in a general line tangential to the northern limits of the
existing residential developments in the western and eastern parts, but it did
not include the wedge. It ran across the northern base of the wedge. Worth’s
land was, therefore, excluded from the green belt.
In November
1982, the county council published draft proposals for a green belt local plan
covering the whole county. This included a map (‘map 35’) showing an alteration
locally to the pre-existing green belt boundary to the north of Kidderminster,
which had been approved in amendment no 22. Generally speaking it extended the
green belt to include the wedge. It was described as ‘proposal 24’, which read:
Location: The
Stour Valley between the Franche area and Broadwaters area. It is proposed that
the open land on either side of the River Stour, with the exception of the
areas already laid out as urban open spaces, should be included in the Green
Belt. To protect this potentially attractive open area, it is considered that
the areas already laid out for urban open space purposes are adequately
protected from building development.
Nothing seems
to have come of this proposal. Perhaps it was overtaken in the general process
of preparing and submitting the draft structure plan for approval by the
Secretary of State. This was finally approved in September 1985.
In accordance
with their duties under the 1971 Act the county council prepared a structure
plan. This was published in October 1985 as approved by the Secretary of State.
A key diagram which accompanied the plan when submitted for approval showed
only the general position of the green belt and is referred to in para 9.6 of
the Secretary of State’s letter:
On the key
diagram which accompanied the submitted structure plan, the County Council had
shown the general area of the Green Belt between Droitwich and Worcester, as
extending as far west as the River Severn. In the approved Worcestershire
Structure Plan the extent of the Green Belt lay generally between the M5
Motorway to the east and the Birmingham to Worcester railway line to the west.
The Secretary of State proposes to confine the Green Belt generally to the area
in the approved Structure Plan. The Secretary of State is committed to the
preservation of the Green Belt and considers that for Green Belts to maintain
their credibility, once their general extent has been approved as part of the
Structure Plan for the area, they should be altered only in exceptional
circumstances. He is aware that precise Green Belt boundaries remain to be
determined in this area and that this exercise, which should be done through
the Local Plan process, may involve some adjustment at the margins of the Green
Belt as shown in the Structure Plan. However, he considers that the proposed
alteration of the extent of the Green Belt in the plan as submitted goes
further than a marginal adjustment. He does not consider that the basic
principle of Green Belt (preventing the coalescence of settlements) is at risk
for the whole of the area.
On May 28 1986
the council published a draft of their proposed local plan. This did not follow
the proposals in the draft county council plan so as to include the applicants’
land in the proposed green belt. This prompted representations from the county
council. In the light of these and other objections the council published a
further draft plan, which became part of the statutory consultative procedure.
On this plan the green belt was projected southwards to include undeveloped
land in the wedge itself. This proposal, known as ‘proposal 3’, formed part of
a schedule of proposed changes to the green belt boundary published together
with the draft local plan. The comment against the change, which was described
as change from ‘Part Public Open Space, Part White Land, Part Residential to
Green Belt’, was explained in the following manner:
To safeguard
the open valley and provide an area for informal recreation.
This
contrasted with the description in the draft local green belt plan proposed by
the county council in proposal 24 which I have already recited. The reasons for
the proposal were:
(2) Reasons.
To protect
this potentially attractive open area. It is considered that the areas already
laid out for urban open space purposes are adequately protected from building
development.
Para 2.5 of
the approved county structure plan defined the policy for the green belt in the
County of Hereford and Worcester:
(a) To prevent further growth of the conurbation
into the countryside;
(b) to limit the expansion of built-up areas in
the Green Belt area in order that neighbouring towns and villages will not
merge with one another; and
(c) to safeguard the area of open countryside in
order to take account of the interests of agriculture and to provide a source
of informal recreation and enjoyment for the inhabitants of the area and
neighbouring built-up areas. The rural character of the Green Belt will
therefore be retained, protected and when the opportunity arises, enhanced.
Worth objected
to proposal 3 on the basis that the proposed extension of the green belt to
include the wedge did not serve to prevent further growth of the conurbation
into the countryside or to prevent neighbouring towns and villages merging into
one another. Therefore purposes (a) and (b) were not valid reasons for this
alteration. Furthermore, Worth did not accept that purpose (c) could stand on
its own as a reason for a new incursion into other
held under the provisions of section 13 of the 1971 Act.
At the public
inquiry Worth through their advisers proposed that so far as the land to the
north of their factory area was concerned there should be three different types
of development. These included residential development, some public open space
and amenities. Having set out in his report the principal objections and the
council’s proposals the inspector at para 300, under the heading ‘Green Belt
Boundary Proposals‘, said:
300. I have
already indicated that objections relating to the proposed Green Belt boundary
but which concern specific sites have been covered elsewhere in this report. In
this section I consider the Council’s Schedule of proposed principal changes to
the boundary as set out in Plans 5 to 11 and in Appendix 3 to the Written
Statement.
Change
Three: Stour Valley. Puxton.
This proposal
will take in part of objection Sites Nos. 5 and 7 and part of Site No. 8. These
areas have been recommended for inclusion in the Green Belt. This change is
therefore accepted.
The report and
recommendations of the local plans working party on the report into objections
to the local plan came before the planning and highways committee of the
council on September 28 1988, when para 300 of the report, which has just been
cited, was accepted without change from the inspector’s recommendations.
Worth now
challenges the adoption of this part of the inspector’s report and its
inclusion in the local plan on the grounds that neither the inspector, nor the
council in approving his recommendations without more consideration, had regard
to ministerial policy relating to the treatment of green belt proposals in
local plans, as disclosed particularly in Circular 14/84 para 3(a). It
is true that the inspector’s report was considered at a meeting of the planning
and highways committee on September 28 1988 — but there is no record of any
consideration of exceptional circumstances justifying the alteration of the
boundary of the green belt. Indeed Mr Wilson-Smith does not suggest that such
exceptional circumstances existed in any event.
It is necessary
at this stage to refer to some of the circulars and PPGs. Before doing so,
however, notwithstanding the accord reached between Mr Wilson-Smith and Mr Ash,
I must consider the status of these documents. They are not issued under
statutory authority. ‘Prescribed’ considerations involve regulations made by
the Secretary of State under section 287 of the 1971 Act and are therefore
subject to resolution of each House of Parliament. Ministerial circulars as
published or as summarised in PPGs have therefore no formal statutory force and
should therefore not be treated as such for any purpose. This includes, in my
judgment, the manner in which they should be construed and/or applied. They
constitute announcements of the current ministerial planning policy. The only
statutory obligation upon the local planning authority is ‘to have regard to
them’. They are in no way bound by them. This appeal can be based only on the
ground that the council did not have regard to a relevant circular or PPG.
The concept of
green belts was first introduced in 1955 consequent upon a statement by the
minister in the House of Commons on April 26 of that year.
Circular 42/55
dated August 3 1955, after referring to the statement in the House, stated:
1 . . . I am directed by the Minister of
Housing and Local Government to draw your attention to the importance of
checking the unrestricted sprawl of the built-up areas, and of safeguarding the
surrounding countryside against further encroachment.
2 He is satisfied that the only really
effective way to achieve this object is by the formal designation of clearly
defined Green Belts around the areas concerned.
3 The Minister accordingly recommends Planning
Authorities to consider establishing a Green Belt wherever this is desirable in
order:
(a) to check the further growth of a large
built-up area;
(b) to prevent neighbouring towns from merging
into one another; or
(c) to preserve the special character of a town.
4 Wherever practicable, a Green Belt should be
several miles wide, so as to ensure an appreciable rural zone all round the
built-up area concerned.
5 Inside a Green Belt, approval should not be
given, except in very special circumstances, for the construction of new
buildings or for the use of existing buildings for purposes other than
agriculture, sport, cemeteries, institutions standing in extensive grounds, or
other uses appropriate to a rural area.
. . .
8 In due course, a detailed survey will be
needed to define precisely the inner and outer boundaries of the Green Belt, as
well as the boundaries of towns and villages within it. Thereafter, these
particulars will have to be incorporated as amendments in the Development Plan.
No 9 is not
relevant.
Circular 50/57
— Green Belts dated September 19 1957:
5. The
definition of a long-term boundary for development may involve detailed
adjustments (either inwards or outwards) in the boundary of the area already
allocated on a Town Map. Where land allocations are to be deleted or additional
land allocated for development within the Plan period, the adjustments can be
included in the same submission as the Green Belt proposals.
6. There may
be some pockets of land, between the town and the Green Belt, which are not to
be developed within the present Plan period but which could be developed later
without prejudice to the Green Belt. It would be misleading to allocate such
areas now, but to include them in the Green Belt for the time being might give
rise to difficulties and undermine public confidence in the Green Belt at a
later date if it were then decided to allocate the land for development. Such
areas may well be left as pockets of ‘white’ land. They are then bound to be
especially attractive to developers and it will be desirable to set out in the
Written Statement the authority’s policy for such areas in order to make it
clear that they are not available for development at the present time.
Circular 14/84
— Green Belts dated July 4 1984:
1. The
Government continues to attach great importance to Green Belts, which have a
broad and positive role in checking the unrestricted sprawl of built-up areas,
safeguarding the surrounding countryside from further encroachment and
assisting in urban regeneration. There must continue to be a general
presumption against inappropriate development within Green Belts. The
Government reaffirms the objectives of Green Belt policy and the related
development control policies set out in Ministry of Housing and Local
Government Circular 42/55.
2. Structure
plans have now been approved for most parts of the country and these identify
the broad areas of the Green Belt. Detailed Green Belt boundaries are now being
defined in local plans and in many cases these are based on Green Belt areas
defined in earlier development plans approved prior to the introduction of
structure and local plans. This process of local plan preparation is continuing
and this circular includes advice on the definition of detailed Green Belt
boundaries in local plans.
3. The
essential characteristic of Green Belts is their permanence and their
protection must be maintained as far as can be seen ahead. It follows from this
that:
(a) Once the general extent of a Green Belt has
been approved as part of the structure plan for an area it should be altered
only in exceptional circumstances. If such an alteration is proposed the
Secretary of State will wish to be satisfied that the authority has considered
opportunities for development within the urban areas contained by and beyond
the Green Belt. Similarly, detailed Green Belt boundaries defined in adopted
local plans or earlier approved development plans should be altered only
exceptionally.
(Emphasis
provided.)
Para (b)
is not relevant.
It remains
only to refer to the relevant PPG. There were a series of these published in
draft form towards the end of 1987 and formally published in January and
February 1988. There were in fact 10 in number; but at this stage I need only
refer to one of them.
Planning
Policy Guidance Note 2 was headed Green Belts and provided so far as
relevant as follows:
Purposes of
Green Belts
4. Green
Belts have five purposes:
— to check
the unrestricted sprawl of large built-up areas;
— to
safeguard the surrounding countryside from further encroachment;
— to
prevent neighbouring towns from merging into one another;
— to
preserve the special character of historic towns; and
— to assist
in urban regeneration.
5. Green
Belts also have a positive role in providing access to open countryside for the
urban population. Such access may be for active outdoor sports or for passive
recreation. Outdoor leisure pursuits are likely to occupy an increasing
proportion of the Green Belt if, as currently expected, the land needed for
food production decreases. . . .
Designation
of Green Belts
7. The
essential characteristic of Green Belts is their permanence and their
protection must be maintained as far as can be seen ahead.
8. Green
Belts are established through development plans. Their general extent has now
been fixed through the approval of structure plans and many detailed boundaries
have been set in local plans and in old development plans.
9. Once the
general extent of a Green Belt has been approved it should be altered only in
exceptional circumstances. If such an alteration is proposed the Secretary of
State will wish to be satisfied that the authority has considered opportunities
for development within urban areas contained by and beyond the Green Belt.
Similarly, detailed Green Belt boundaries defined in adopted local plans or
earlier approved development plans should be altered only exceptionally.
Detailed boundaries should not be amended or development allowed merely because
the land has become derelict. On the outer edge of a Green Belt, readily
recognisable features such as roads, streams or belts of trees should be used
to define the boundaries.
10. Where
detailed Green Belt boundaries have not yet been defined, local planning
authorities are urged to complete this task. It is necessary to establish
boundaries that will endure and they should be carefully drawn so as not to
include land which it is unnecessary to keep permanently open. Otherwise there
is a risk that encroachment on the Green Belt will have to be allowed in order
to accommodate future development.
11. When
local planning authorities prepare new or revised structure and local plans, any
proposals affecting Green Belts should be related to a time scale which is
longer than that normally adopted for other aspects of the plan. They should
satisfy themselves that Green Belt boundaries will not need to be
altered at the end of the plan period. In some cases this will mean
safeguarding land between the urban area and the Green Belt which may be
required to meet longer term development needs.
(Emphasis provided.)
This appeal
therefore depends upon whether or not para 3(a) of Circular 14/84
applies to the decision of the council to adopt the inspector’s recommendation
that the wedge should be included within the boundaries of the green belt shown
on their local plan. It is common ground that neither the inspector nor the
planning and highways committee of the council ‘had regard to this
circular.’ It is also common ground that
they had a statutory obligation to do this under section 11(9) of the 1971 Act.
Although the local authority is not bound by the policy circulars, it should
observe them and depart from them only if there are clear reasons, which should
be stated, for so doing: see Gransden (E C) & Co Ltd v Secretary
of State for the Environment (1985) 54 P&CR 86.
There was an
‘earlier approved development plan’ which excluded the wedge from the green
belt (amendment no 22 to the development plan prepared by Worcestershire County
Council already mentioned). The extension of the southern boundary of the green
belt to include the wedge was therefore an alteration to the boundaries defined
in an earlier approved development plan. The central issue was whether
‘exceptionally’ related to any alteration or only to alterations to the
boundary the effect of which was to diminish the area of the green belt in the
immediate area of the variation.
Otton J
considered this question at (1990) 61 P&CR 57 at pp 62-63:
Thus when one
turns to para 3 (of Circular 14/84), one sees that the Secretary of State
reiterates the essential characteristics of green belts and then states:
‘Once the general extent of a Green Belt
has been approved as part of the structure plan for an area it should be
altered only in exceptional circumstances.’
This passage
is not strictly relevant to this case, but it none the less indicates that the
general extent is determined and settled in the structure plan and once it has
been so determined it shall then (ie in the future) be altered only in
exceptional circumstances. In short, the Secretary of State contemplates a
prospective and not a retrospective approach. Thus, when one reaches the next
relevant sentence, ‘Similarly, detailed Green Belt boundaries defined in
adopted local plans . . . should be altered only exceptionally’, the meaning is
clear. Once the detailed boundaries have been defined and adopted in a local
plan, then (ie after adoption) they should be altered only in exceptional
circumstances.
I have of
course omitted the words ‘or earlier approved development plans’. The
reinsertion of those words into that sentence does not, in my judgment, alter
the construction I have placed upon the sentence as a whole. These words, as I
read them, refer to the rare situations where there is no local plan for the
area or, if there is a local plan, it expressly adopted the boundaries defined
in an earlier approved plan.
With respect
to Otton J I find it difficult to see how the exercise of omitting the words
‘or earlier approved development plans’ assists in the construction of the
passage as a whole. ‘Adopted local plans’ are local plans which have been
prepared under sections 11 to 14 of the 1971 Act. These can be altered
subsequently under the provisions of section 15 of that Act. ‘Earlier approved
development plans’ clearly relates to development plans prepared and approved
under section 55 of the 1947 Act, including amendments under section 56 of that
Act. The two types of plans to which para 3(a) refers are quite
different classes of document and are prepared under different statutes. Of
course, the plan with which this appeal is concerned falls within the latter
rather than the former category. In construing para 3(a) one must look
at it as a whole.
The first
sentence of para 2 of Circular 14/84 recorded that structure plans had by then
been approved for most parts of the country and that these identified the broad
areas of green belt. The remaining part of para 2 addressed itself to the
question of local plans in which detailed boundaries of green belts had already
been shown, or were about to be shown, stating that in many cases these were
based on green belt areas defined in earlier relevant plans approved prior to
the introduction of structure and local plans. Here again the relevant plans
referred to would include development plans. Returning to para 3(a), the
first point that the paragraph makes is that once the ‘general extent’ of a
green belt has been approved this should be ‘altered’ only in exceptional
circumstances. It is to be noticed that the paragraph does not say that it
should be ‘reduced’ only in exceptional circumstances. The word ‘altered’ is
quite unqualified. What, then, is the significance of the word ‘similarly’ with
which the last sentence opens? It must
refer to two categories of cases, namely where local plans had already been adopted
or where earlier approved development plans were in place. I see no mandate for
treating the two alternative positions differently. The boundaries of existing
green belts in structure plans should not be altered either way except in
exceptional circumstances nor should adopted local plans be treated any
differently. Mr Wilson-Smith argued that the word ‘alteration’ as used in para
3 of the circular means ‘alteration which results in diminishing the area of
the green belt’. He justified the implication of these words by pointing to the
policy of Circular 14/84, which refers only to the necessity of ‘preserving’
the green belt from encroachment, usually by buildings, residential and
industrial, both within the green belt or by erosion along the boundaries. He
referred by way of example to ‘safeguarding the surrounding countryside from
further encroachment . . .’ (para 1):
There must
continue to be a general presumption against inappropriate development within
Green Belts
and (para 3):
The essential
characteristic of Green Belts is their permanence and their protection must be
maintained . . .
These
statements merely repeat and reinforce Circular 42/55, to which I have already
referred. The context in which the statement in the House was made and the circular
issued was a purely negative one, ie to prevent urban sprawl. It is not
surprising, therefore, that the emphasis is on the restriction of alterations,
the effect of which would be to erode or diminish the extent of green belts. Mr
Wilson-Smith submitted that there was no need to give protection against
extensions of the green belt. I must return to consider this proposition in a
little more detail later. It was not the basis upon which Otton J formed his
judgment, (1990) 61 P&CR 57 at p 63:
In short I reject
the construction advanced by Mr Harper [counsel for the applicant]. Para 3(a),
read in the context of Circular 14/84 as a whole, does not mean that once a
boundary had been defined and settled under an earlier development plan it
could only be changed in a later local plan in exceptional circumstances.
In reaching
this decision, I take into account part of para 9.6 from the Hereford and
Worcester County Structure Plan written statement, which states:
‘The Secretary of State is committed to
the preservation of the green belt and considers that for green belts to
maintain their credibility, once their
they should be altered only in exceptional circumstances.’
I interpolate
that the words ‘once . . .’ through to ‘exceptional circumstances’ reiterate
word for word the first sentence of para 3(a) of Circular 14/84. The
next sentence appears to confirm my construction:
‘He is aware that precise green
boundaries remain to be determined in this area and that this exercise, which
should be done through the local plan process, may involve some adjustment at
the margins of the green belt as shown in the structure plan’.
In my
judgment the alteration of the applicants’ boundary as a result of the
representation by the county council amounted to no more than an adjustment at
the margin of the green belt.
I hope that it
does not do an injustice if I say that Mr Wilson-Smith did not embrace the
suggestion that the inclusion of the wedge within the green belt could be
described as an adjustment at the margin with any degree of enthusiasm. The
main plank of his argument was that alterations to the boundary of the green
belt, which had the effect of extending the green belt, did not require justification
by exceptional circumstances. To support this argument the respondents had
served a notice under RSC Ord 59 r 6(1)(b) to the following effect:
1. That
exceptional circumstances were not required under Circular 14/84 or Planning
Policy Guidance (PPG2) issued by the Department of the Environment where the
alteration to the green belt was by way of extension rather than relaxation.
2. That the
process of producing a new Local Plan was itself an exceptional circumstance.
Para 2 of the
notice was not relied upon by Mr Wilson-Smith, rightly in my judgment. It could
not be substantiated on any basis.
Mr Ash
submitted that para 3(a) of Circular 14/84 was in plain terms and that
proper planning required consideration of the interests of all parties involved,
not the least those interested in development. The effect of the green belt was
to sterilise the area for development, other than the limited number of
specified purposes, and would inhibit proper and orderly development.
Therefore, once the boundaries of the green belt in a particular area had been
defined, developers and others interested were entitled to protection against
change to the limited degree that the boundaries would be altered only in
exceptional circumstances. Besides what must be assumed to be the deliberate
use of the word ‘alter’ in para 3(a) as I have already observed in my
judgment, Mr Ash has support for his submissions to be drawn from a
consideration of planning concepts as a whole.
The circulars
and PPGs having no statutory authority can be viewed only as indicatory of
current planning policy. Although the PPGs were issued over a matter of months,
the circulars were published over a period of years. One can detect over the
passage of time shifts in emphasis disclosed in the latter as between
‘development’ on the one hand and ‘conservation’ on the other. In the
circumstances, I think that Mr Wilson-Smith was justified in submitting that
these documents should not be treated as statutes in the process of construing
what they mean. In my judgment, it is legitimate to look to the purpose of
planning policy as a whole and take into account the particular contemporaneous
context in which a particular document was published. I consider that the key
may well lie in the underlying concept of PPG 1, General Policy and
Principles, namely that, where possible, planning policies should encourage
development:
The
presumption in favour of development
15. The
planning system fails in its function whenever it prevents, inhibits
or delays development which can reasonably be permitted. There is always a
presumption in favour of allowing applications for development, having regard
to all material considerations, unless that development would cause
demonstrable harm to interests of acknowledged importance. Except in the case
of inappropriate development in the Green Belt the developer is not required to
prove the case for the development he proposes to carry out; if the planning
authority consider it necessary to refuse permission, the onus is on them to demonstrate
clearly why the development cannot be permitted.
The zoning of
any particular area as a green belt sterilises that area except for the limited
category of purposes listed in para 5 of Circular 42/55. It therefore provides
a kind of planning blight and must be an exception to PPG 1 para 15, the area
of which should not be extended unless it is necessary for the purposes of the
green belt as defined in PPG 2.
As it directly
prejudices landowners in the otherwise proper development of their land, an extension
to the green belt should not be brought into effect unless it can be justified
directly by those purposes for which the green belt is designed. There must,
therefore, be an inhibition in extending a green belt so as to avoid
sterilising unnecessarily neighbouring land (see the provisions of paras 5 and
6 of Circular 50/57 set out earlier in this judgment) just as much as
reductions in the boundaries of the green belt, which would prejudice the
purposes of that green belt, must also be made only in exceptional
circumstances. On this basis I think that the general concept of the advice in
the circulars is that once a green belt has been established and approved as a
result of all the normal statutory processes it must require exceptional
circumstances rather than general planning concepts to justify an alteration.
Whichever way the boundary is altered there must be serious prejudice one way
or the other to the parties involved.
This accords
with a plain reading of the words ‘altered’ and ‘alteration’ in para 3(a)
of Circular 14/84. Furthermore, the general tenor of Circular 14/84 is that
once a green belt has been approved — either in an adopted local plan or, if a
local plan has not been adopted under the 1971 legislation, in the next
previously approved and adopted plan — alteration to boundaries of a green belt
should be made only in exceptional circumstances. There are two obvious
qualifications to this principle: first, if as a result of the supervening
structure plan green belt boundaries shown in an earlier development become
meaningless or anomalous; second, if the structure plan for the area concerned
has not been approved, then none of the provisions of para 3(a) apply.
The matter is considered in para 3(b), to which it is, at this stage,
interesting to refer:
Where
detailed Green Belt boundaries have not yet been defined in earlier approved
development plans or in adopted local plans — for example, where approved
structure plans have extended the area of the Green Belt to include areas
previously referred to as ‘interim’ Green Belt — it is necessary to establish
boundaries that will endure. It is especially important that these boundaries
of Green Belts should be carefully drawn so as not to include land which it is
unnecessary to keep permanently open for the purpose of the Green Belt.
Otherwise there is a risk that encroachment on the Green Belt may have to be
allowed in order to accommodate future development. If Green Belt boundaries
are drawn excessively tightly around existing built-up areas it may not be
possible to maintain the degree of permanence that Green Belts should have.
This would devalue the concept of the Green Belt and also reduce the value of
local plans in making proper provision for necessary development in the future.
Although, for
the reasons already stated, the emphasis is on erosion of the green belt, this
subparagraph indicates that the importance of unnecessary extension has not
been overlooked.
Although there
might have been a case to be made on the grounds that the reasons given in
proposal 3 to the draft local plan for extending the green belt were not
justifiable in any event, this was not pursued by Mr Ash and it is not
necessary for me to consider this position. I am satisfied that neither the
inspector nor the planning authority ‘had regard’ to para 3(a) of
Circular 14/84. For the purpose of the appeal it was conceded by Mr
Wilson-Smith that there were no ‘exceptional circumstances’ which would justify
the inclusion of the wedge into the green belt. I would allow the appeal and
quash this part of the local plan.
TAYLOR LJ: I agree that this appeal should be allowed for the reasons given by
Purchas LJ. There was no dispute that the local planning authority had a duty
to have regard to circulars and PPGs issued by the Secretary of State. The
central issue was as to the meaning and effect of para 3(a) of Circular
14/84, which provides as follows:
3. The
essential characteristic of Green Belts is their permanence and their
protection must be maintained as far as can be seen ahead. It follows from this
that:
(a) Once the general extent of a Green belt has
been approved as part of the structure plan for an area it should be altered
only in exceptional circumstances. If such an alteration is proposed the
Secretary of State will wish to be satisfied that the authority has considered
opportunities for development within the urban areas contained by and beyond
the Green Belt. Similarly, detailed Green Belt boundaries defined in adopted
local plans or earlier approved development plans should be altered only
exceptionally.
Without
seeking to construe the circular as strictly as a statute, which would be
inappropriate, I agree with Purchas LJ as to its purpose and effect. The
introductory words refer to the permanence as well as to the protection of the
green belt as being essential. The word ‘altered’ is used in para 3(a)
rather than words such as reduced, encroached upon or breached. It is suggested
that the second sentence is consistent only with alteration by reduction, the
implication being that if there are opportunities for development in the urban
areas the green belt should not be invaded for such development. However, it
could equally apply to exclude extension of the green belt if such extension
would diminish unacceptably opportunities for development having regard to the
opportunities available in the urban areas. This latter consideration is
clearly contemplated in para 3(b), which states, inter alia:
. . . it is especially
important that these boundaries of Green Belts should be carefully drawn so as
not to include land which it is unnecessary to keep permanently open for the
purpose of the Green Belt. Otherwise there is a risk that encroachment on the
Green Belt may have to be allowed in order to accommodate future development.
If Green Belt boundaries are drawn excessively tightly around existing built-up
areas it may not be possible to maintain the degree of permanence that Green
Belts should have . . .
In my view,
the requirement of exceptional circumstances before altering the green belt was
applicable to increasing as well as reducing it. The prejudice to landowners
and developers and the uncertainties which would be created if the green belt,
once approved, could be extended other than exceptionally have been fully
explained by Purchas LJ. It is true that the circular and PPG 2, which is to
similar effect, do not bind the local planning authority, but they must have
regard to them. They did not do so. Moreover, it is conceded that there were
here no exceptional circumstances. Accordingly, in my view, the decision to
include the wedge in the green belt was flawed.
BELDAM LJ: In this case the appellants in an application to the High Court
under section 244 of the Town and Country Planning Act 1971, challenge the
validity of a proposal made by the respondent district council in formulating
the Wyre Forest urban areas local plan on the ground that they did not have
regard to considerations which the Secretary of State in the particular case
directed them to take into account. The particular considerations are those
contained in circulars and planning policy guidelines relating to green belt
areas. As Purchas LJ records in his judgment, the court has been asked to decide
the case on the single issue of the construction to be given to a particular
circular, Circular 14/84, issued by the Secretary of State and entitled Green
Belts. It is said that if the construction contended for by the appellants
is correct, their appeal should succeed but if the respondents’ construction is
right then the appeal must fail. I do not myself believe that this is the
correct or a realistic basis upon which to decide whether in any particular
case a local planning authority have erred in formulating their proposals in a
local plan. Nevertheless, under the constraint imposed by the manner in which
the case was presented and in the light of the clear concession made on the
respondents’ behalf by Mr Wilson-Smith QC that the respondents’ reasons for
their decision would be inadequate if they were required to have regard to the
Secretary of State’s policy for settling the boundaries of a green belt area
when enlarging as well as when reducing the area contained within its
boundaries, I agree that the appeal should be allowed.
Ministerial
guidance clearly does not have the force of a statute or regulations and is not
intended to be subjected to a process of legalistic interpretation. Equally,
ministerial policy is something which a local planning authority are required
under the Act to take into account in reaching the decision entrusted to them
by Parliament. According to para 5 of PPG 2 issued by the Department of
Environment in January 1988, one justification for including land within a
green belt is so that it may play a positive role in providing access to open
countryside for the urban population. Such access may be for active outdoor
sports or for passive recreation. The reason given in appendix 3 of the Wyre
Forest urban areas local plan written statement for the inclusion in the green
belt of the wedge of land, part of which belonged to the appellants, was to
safeguard the open valley and to provide an area for informal recreation, a
purpose which, as it seems to me, was well within the justification to which I
have referred.
The paragraphs
in Circular 14/84 dated July 4 1984 and issued by the Department of the
Environment upon which so much emphasis has been placed are in part reproduced,
under the heading Designation of Green Belts, in paras 7 to 11 of PPG 2.
If it were correct to view the ministerial guidance as being subject to strict
legal rules of construction, I would, for my part, have said that in para 3(a)
the minister clearly had in mind alterations which consisted of allowing development
in designated green belt areas. The fact that if such an alteration were
proposed the Secretary of State would have to be satisfied that it could not be
accommodated within urban areas contained by and beyond the green belt seems to
me to support this. The word ‘similarly’ later in para 3(a) is, in my
view, used to indicate that the same criterion should be applied to green belt
boundaries defined in adopted local plans or earlier approved development plans
as to those approved as part of a structure plan for an area. And although this
paragraph in isolation might suggest that ministerial guidance is limited to
development which reduces the area of the green belt, there is clearly other
policy guidance for green belt boundaries in both the circular and in PPG 2.
Circular 14/84 states at para 3(b):
. . . It is
especially important that these boundaries of Green Belts should be
carefully drawn so as not to include land which it is unnecessary to keep
permanently open for the purpose of the Green Belt. Otherwise there is a risk
that encroachment on the Green Belt may have to be allowed in order to
accommodate future development. If Green Belt boundaries are drawn excessively
tightly around existing built-up areas, it may not be possible to maintain the
degree of permanence that Green Belts should have. This would devalue the
concept of the Green Belt and also reduce the value of local plans in making
proper provision for necessary development in the future.
This guidance
is reproduced in PPG 2 in para 10:
. . . It is
necessary to establish boundaries that will endure and they should be carefully
drawn so as not to include land which it is unnecessary to keep permanently
open. Otherwise there is a risk that encroachment on the Green Belt will have
to be allowed in order to accommodate future development.
Such guidance
cannot, I think, be confined to cases where detailed green belt boundaries have
not yet been defined. In the context of ministerial policy as a whole it is, I
think, intended to apply whether the boundaries of the green belt are being
changed to reduce or to enlarge the area. This seems to me clear from the
policy more fully set out in Circular 14/84. Thus, a local planning authority
considering whether or not to alter the boundaries of a green belt by the
inclusion of additional land not previously contained within the boundary
should at least take into account as part of ministerial policy whether that
boundary is in the longer term defensible against pressure for development and
whether to draw the proposed boundary may include land which it is unnecessary
to keep permanently open for the purpose of the green belt. The reasons given
by the respondents and the manner in which the appeal has been resisted on
their behalf seem to me to indicate that in adopting the recommendation of the
inspector who conducted the local inquiry they did not have regard to this
important aspect of ministerial policy.
I, therefore,
agree that the appeal should be allowed.
Appeal
allowed with costs here and below.
