Development – Green belt – Enforcement notice – Claimant using farm land for paintballing and livery activities – Local authority issuing enforcement notices – Inspector dismissing appeal against notices – Whether inspector adopting unlawful interpretation of PPG2 – Whether inspector making irrational and inconsistent findings and failing to have regard to material considerations – Appeal dismissed
The claimant company owned a farm in Dorset located in the green belt, about 1.5 kilometres by track from a special conservation area. The second defendant local authority issued four enforcement notices relating to activities and structures on the land concerning: (i) the unauthorised use of the land for paintballing; (ii) the unauthorised erection of wooden structures, barriers and obstacles associated with paintballing; (iii) the unauthorised erection of barriers and obstacles constructed of wooden sheets and uncut tree wood and the positioning of metal barrels and plastic water storage containers associated with paintballing; and (iv) the unauthorised use of the land for DIY livery.
An inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal against those notices. The claimant appealed against that decision pursuant to section 289 of the Town and Country Planning Act 1990. The claimant contended that the inspector had erred in law because she had adopted an unlawful interpretation of Planning Policy Guidance Note 2: Green Belts (PPG2) in holding that the use of land for outdoor recreation and the provision of essential facilities for such uses had to preserve openness to be appropriate development. The Inspector had approached both the paint ball use and the livery use on the basis that each constituted a material change of use of the land and was thus inappropriate development unless it maintained openness and did not conflict with the purposes of including land in the green belt. The claimant argued that that approach was wrong in law because outdoor sport and outdoor recreation and cemeteries were deemed to preserve openness and only the essential facilities for uses other than outdoor sport, outdoor recreation and cemeteries required an assessment as to whether they preserved openness.
Further the inspector’s findings were irrational, inconsistent and failed to have regard to material considerations and relied on legally defective conclusions.
Held: The appeal was dismissed.
(1) PPG2, paragraph 1.4 set out the fundamental aim of green belt policy of preventing urban sprawl by keeping land permanently open. The following paragraphs had to be construed purposively so that they were consistent with and gave effect to that fundamental aim. Any doubt about what subsequent paragraphs meant had to be resolved, if the language permitted, in favour of a meaning that accorded with the fundamental aim. Paragraph 1.5 set out the five purposes of including land in green belts which embodied the fundamental aim. Under the heading “The use of land in Green Belts”, paragraph 1.6 declared the positive role that use of green belt land had to play in fulfilling six objectives, in particular the provision of opportunities for outdoor sport and outdoor recreation near urban areas which might be furthered, for instance, by preventing development of open land already used as playing fields, as well as by using other green belt land for sporting and recreational activities. Paragraph 1.7 made it unambiguously clear that the purposes of including land in green belts were of paramount importance to the continued protection thereof and should take precedence over the land use objectives. While use of green belt land near an urban area for outdoor sport and recreation would meet one of the objectives in paragraph 1.6, if that use conflicted with one or more of the paragraph 1.5 purposes, the latter prevailed.
The fact that PPG2 did not say that outdoor sport and outdoor recreation were deemed to preserve openness militated strongly against the claimant’s contention. That was reinforced by the consideration that if outdoor sport and outdoor recreation were deemed to preserve openness without the need for an assessment of whether they in fact did so, the fundamental aim would be open to serious erosion by use of land for purposes which did not, in fact, preserve openness. Absent compelling authority to the contrary, PPG2 did not on its true construction have the effect for which the claimant contended.
(2) The second bullet point in paragraph 3.4 of PPG2 ended with the words “which preserve the openness of the green belt and which do not conflict with the purposes of including land in it (see paragraph 3.5 below)”. Paragraph 3.5 stated in general terms that “essential facilities should be genuinely required for uses of land which preserve the openness of the green belt”. A structure or erection on land that was intended to have its openness preserved permanently, self-evidently did not achieve that objective; to a greater or lesser extent the structure or erection constituted an obstacle to openness. It therefore made sense in the context of green belt planning policy to construe the second bullet point in paragraph 3.4 so that all new buildings were inappropriate unless they could be shown to be essential facilities for whatever the use might be and also genuinely required for that use. In the present case, the court was not persuaded that the three specified categories of use were deemed to preserve openness. Accordingly, the claimant’s attack upon the inspector’s approach to PPG2, in relation to both the paintballing and livery development was unsustainable: Gass v Secretary of State for Communities and Local Government [2008] EWHC 350 (Admin) and Samuel Smith Old Brewery (Tadcaster) (an unlimited company) v Secretary of State for Communities and Local Government [2009] EWHC 3238 (Admin); [2009] PLSCS 328 considered.
(3) As to the claimant’s complaint that the inspector had failed to consider the imposition of conditions as to time and location for temporary structures, the inspector was under no obligation to search for a condition which might be used to assist the claimant: R (on the application of Ayres) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 295, [2002] PLSCS 61 considered.
(4) The inspector’s conclusions on the green belt effects of the livery use had not been irrational, inconsistent or without regard to material considerations and there had been no unreasonableness in her approach in the exercise of her planning judgment. Furthermore, the claim that the inspector had failed to reach a reasoned or rational conclusion as to the impact on the special conservation area was wholly without merit. The inspector had given very detailed consideration to the facts and the legal framework and thereafter applied her planning judgment to arrive at a rational and soundly-based conclusion.
Richard Harwood (instructed by Horsey Lightly Fynn, of Bournemouth) appeared for the claimant; Sarah Hannett (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented.
Eileen O’Grady, barrister
