Town and country planning – Green belt – Outdoor recreation – PPG 2 – Appellant using green-belt land for paintballing and livery activities – Local authority issuing enforcement notices in respect of those uses – Notice upheld on appeal to planning inspector on ground that matters alleged in notices constituting inappropriate development in green belt – Whether inspector erring in application of PPG 2 concerning facilities essential to outdoor recreation – Whether outdoor recreation uses to be deemed to preserve openness – Appeal dismissed
The appellant owned a farm located within the green belt in Dorset. The second respondent council issued enforcement notices alleging breaches of planning control by the use of the land for paintballing and livery and the erection of structures on the land connected with those uses. Although some of the notices were quashed on an appeal to the first respondent’s planning inspector, four notices were upheld, relating to the unauthorised uses of the land for paintballing and livery and the erection of wooden structures, barriers and obstacles, and the positioning of metal barrels and plastic water storage containers, in connection with the paintballing use.
The inspector took the view that the change of use of the land to paintballing and livery amounted to inappropriate development in the green belt, within para 3.1 of PPG 2. She noted that paintballing was a form of outdoor recreation and that, under para 3.4 of PPG2, essential facilities for outdoor recreation might not be inappropriate, provided that they were required for uses of land that preserved the openness of the green belt and did not conflict with the purposes of including land within it. However, she concluded that the paintballing use had materially impacted on openness owing the number and size of the structures related to it and the associated parking on the land. In relation to the livery use, she considered that, while the use of the land for keeping horses would not by itself necessarily harm openness or conflict with the purposes of the green belt, the openness of the land had been affected by parking and the placing of horse shelters on the land in connection with the livery use.
The appellant appealed against that decision under section 289 of the Town and Country Planning Act 1990. One of its main contentions was that the inspector had wrongly interpreted para 3.4; it submitted that the true effect of that provision was that outdoor sport and recreation were deemed to preserve openness and that essential facilities for such uses were permitted. That argument was rejected in the court below: see [2012] EWHC 2909 (Admin); [2012] PLSCS 219. The appellant appealed.
Held: The appeal was dismissed.
The inspector had correctly interpreted para 3.4 of PPG 2, the effect of which was qualified by the explanation of “essential facilities” in para 3.5 as being facilities that were genuinely required for uses of land that preserved the openness of the green belt and did not conflict with the purposes of including land within it. Those facilities were therefore required not only to be essential, in the sense of required for the purposes of the outdoor activity in question, but also to be of a very limited size, consistent with the application of the criterion of openness to all the land uses specified in the relevant part of para 3.4. The assessment of whether the structures involved in any proposed use of the use infringed the principle of openness, whether individually or collectively, was a question of fact and judgment for the inspector in each case. The inspector’s assessment that the paintballing equipment and associated parking would materially impact on openness was open to her on the evidence and could not be described as irrational or perverse. The same applied to her conclusions on the livery use.
Contrary to the appellant’s submissions, the outdoor recreation uses referred to in para 3.4 were not deemed to preserve the openness of the green belt, so as to remove any need for a factual assessment of that matter and limit the assessment under para 3.5 to a determination of whether the facilities relating to them were limited in size and necessary for the outdoor sport and activities in question: Samuel Smith Ltd v Secretary of State for Communities and Local Government [2009] EWHC 3238 (Admin) distinguished. The guidance contained in para 3.4 did not, in terms, deem outdoor sport and recreation to be outside the categories of inappropriate development; moreover, it would be surprising for PPG 2 to contain such advice if the purpose of green belt policy was to promote the objectives set out in paras 1.4 and 1.5, including keeping the land open and preventing urban sprawl. Outdoor sport and recreation might take many forms, some of which were likely to involve the construction of extensive facilities, and all of which could properly be said to be genuinely required for that use of the land. Taken to its logical conclusion, the appellant’s suggested interpretation of para 3.4 would remove from the local planning authority any right to reject the proposed development as inappropriate based on the overall effect that the new structures would have, even if the essential facilities required for the outdoor activity in question were multitudinous and widespread. Paragraphs 3.4 and 3.5 of PPG 2 were concerned only with development in the form of new buildings that would be inappropriate but for being essential facilities for activities that were compatible with green belt designation under para 1.6, including the provision of opportunities for outdoor sport and recreation near urban areas. The objectives in para 1.6 were necessarily expressed in general terms and the basic aims of green belt policy took precedence over any other land use objectives. The guidance in para 3.5 confirmed that a global assessment of the impact of the proposal on openness was required in every case.
Richard Harwood QC (instructed by Horsey Lighly Fynn, of Bournemouth) appeared for the appellant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first respondent the second respondents did not appear and were not represented.
Sally Dobson, barrister
