In Budhdeo and another v Secretary of State for Communities and Local Government and another [2016] EWHC 21 (Admin) Judge Sycamore held that an inspector was entitled to refuse permission for replacement housing in the green belt having given significant weight to limited harm.
The inspector was considering conjoined appeals under Section 78 of the Town and Country Planning Act 1990, against refusal of permission for two separate applications relating to alteration and extensions and to demolition and replacement of the same property in the metropolitan green belt (both of which would have produced the same end state building). The inspector concluded that both schemes would involve inappropriate development, so generating in principle “definitional harm” under paragraph 88 of the National Planning Policy Framework (“NPPF”) and actual harm (in terms of the effect on openness). The replacement was 57% larger than the original home. The inspector had concluded that the proposals would neither fail to preserve or enhance the character or appearance of the conservation area nor create unacceptable amenity effects on neighbouring properties. He nonetheless gave the limited effect on openness significant weight, going on to find no “very special circumstances” which would outweigh both the definitional and the actual harm under paragraph NPPF88 (and no applicable exceptions, under NPPF89).
Paragraph 89 of the NPPF provides for an exception to definitional harm where a replacement building is “in the same use and not materially larger than the one it replaces”. In considering whether the replacement home was “materially larger”, the inspector treated the raw floorspace increase as “an important indicator”, also noting that despite much of the 57% increase in overall floorspace being within hidden basement and garage areas, the overall bulk of the building would have been greatly increased due to the roof design, which would result in it being “materially larger”. He reached the same view in relation to the extension/alteration scheme, on the basis that the enlargement would be disproportionate and so lead to definitional harm as inappropriate development.
The appellants challenged the decision under section 288 of the Act on various grounds, including alleged failure to consider both size and the significance of that size in planning terms based on issues such as design, massing and disposition on the site (applying R (on the application of Heath and Hampstead Society) v Camden London Borough Council [2008] EWCA Civ 193). The judge held that the inspector had properly applied this “flexibility” in considering the effects of the “overall bulk of the building” as well as the pure floorspace increase. The judge also rejected the claim that the inspector’s decision to give significant weight to limited harm was irrational, noting that the decision maker is entitled to give limited harm significant weight when considering the actual harm effects on openness as a matter of planning judgment, which will rarely be open to challenge under section 288.
For authorities, the case is a reminder that for replacement homes in the green belt, a pure size-based approach needs to be supplemented by the application of flexibility in terms of actual harm. For developers, it highlights the level of discretion in decisions about both the level and significance of harm in green belt cases, and the overall very special circumstances balance.
Roy Pinnock is a partner in the planning and public law team at Dentons
