Appeal — Material change of use of redundant pavilion to staff accommodation — Whether adequate reasons that residential use inappropriate — Whether proper application of test of demonstrable harm — Whether PPG2 applies to all redundant buildings — Appeal allowed
The appellant,
Jan Pehrsson, owns ‘Great Martins’, Shurlock Row, Berks, and an adjoining field
in which stands a cricket pavilion of brick and tile construction. The
appellant’s appeal against the decision of Windsor and Maidenhead Royal Borough
Council to refuse planning permission for the use of the pavilion as staff
accommodation for Great Martins was dismissed by
concluded that the proposed development was not appropriate in the green belt;
she also did not accept that the cricket pavilion could be considered in the
same way as redundant agricultural buildings are treated in para 16 of PPG2.
The appellant appealed from a decision of His Honour Judge Marder QC, sitting
as a judge of the Queen’s Bench Division (September 29 1989), who had dismissed
his application to quash the Secretary of State’s decision.
was allowed.
1. The
inspector had failed to give adequate reasons for concluding that the proposed
use was not appropriate for the green belt. She had failed to give
consideration to the nature of the residential use sought, namely restricted to
staff accommodation and in respect of which the appellant had agreed the terms
of a section 52 planning agreement: see p 70H.
2. If the
proposed development is appropriate, then the general presumption in favour of
development applies unless there is demonstrable harm to interests of
acknowledged importance other than the preservation of the green belt itself.
There was no need for the inspector to consider demonstrable harm so long as
she concluded that the development was inappropriate: see p 72F.
3. The
inspector was in error in concluding that para 16 of PPG2 applied only to
redundant agricultural buildings; it applied to all redundant buildings in the
green belt. That was clear from Circular 16/87 and para 18 of PPG7: see pp
69D-70, 73 and 77-78.
to in the judgments
Barnet
Meeting Room Trust v Secretary of State for the
Environment [1990] 3 PLR 21; [1990] JPL 430
Birmingham
Corporation v Habib Ullah [1964] 1 QB 178;
[1963] 3 WLR 937; [1963] 3 All ER 668; (1963) 61 LGR 623; 15 P&CR 404;
[1963] RVR 712, DC
Bromley
London Borough Council v Secretary of State for
the Environment (1989) 59 P&CR 100; [1990] JPL 53
Cranford
Hall Parking Ltd v Secretary of State for the
Environment [1989] JPL 169
Fawcett
Properties Ltd v Buckinghamshire County Council
[1961] AC 636; [1960] 1 WLR 831; [1960] 3 All ER 503; (1960) 59 LGR 69; 12
P&CR 1; [1960] EGD 215; 176 EG 1115, HL
Uttlesford
District Council v Secretary of State for the
Environment [1989] JPL 685
Appeal against
decision of His Honour Judge Marder QC
This was an
appeal against a decision of His Honour Judge Marder QC (sitting as a judge of
the High Court), who had dismissed an application by the appellant under
section 245 of the Town and Country Planning Act 1971 to challenge a decision
of the Secretary of State for the Environment, by his inspector, who had
dismissed an appeal by the appellant against a decision of the second
respondents, Windsor and Maidenhead Royal Borough Council, to refuse planning
permission.
(instructed by Simmons & Simmons) appeared for the appellant, Jan Pehrsson.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Windsor and Maidenhead Royal Borough Council, did not appear and
were not represented.
following judgments were delivered.
LORD
DONALDSON OF LYMINGTON MR: Let me begin by making
it clear what this appeal is not about. It is not about the merits of
the applicant’s planning application and it is not about development in the
sense of undertaking building operations which would alter the appearance of
the brick-built cricket pavilion in the grounds of Great Martins. His
application for consent to development within the meaning of section 22 of the
Town and Country Planning Act 1971 related to a change of use from use as a
cricket
dwelling. Furthermore, he was quite prepared to accept measures which would
confine this use strictly to occupation by staff employed by the occupier of
Great Martins for the time being and whose employment was wholly or mainly in
connection with Great Martins. Indeed, he and the Windsor and Maidenhead Royal
Borough Council had agreed the terms of an appropriate section 52 agreement.
The essence of
the attack upon the inspector’s decision is that, as the appellant alleges, she
misconstrued the Secretary of State for the Environment’s Planning Policy
Guidance and in particular PPG1, PPG2 and PPG7, all of which were issued
simultaneously in January 1988 and, further, failed to give adequate reasons
for her decision.
Onus of
persuasion
The first
issue was what was described as the ‘onus of persuasion’. This stems from the
Secretary of State’s Circular 14/85, which provided:
The planning
system, however, fails in its function whenever it inhibits or delays
development which could reasonably have been permitted. There is therefore
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.
The emphasis is
that of the author of the circular, which later points out that development
plans are one, but only one, of the considerations which must be taken into
account in dealing with planning applications.
The same
proposition appears in identical words in para 15 of PPG1, which deals with General
Policy and Principles, as contrasted with PPG2, which deals with Green
Belts, and PPG7, which deals with Rural Enterprise and Development.
However, para 15 of PPG1 ends with these words:
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.
PPG2 para 12
provides:
The general
policies controlling development in the countryside apply with equal force in
Green Belts but there is, in addition, a general presumption against
inappropriate development within them.
Since the first
part of the sentence incorporates by reference the approach required by
Circular 14/85 and the latter part contradicts it, it is not perhaps very
helpful to join the two with the words ‘in addition’.
In my
judgment, the effect is that, if a proposed development is in a green belt and
is of a nature which is inappropriate, it is by definition one which would
cause demonstrable harm to interests of acknowledged importance. This is not
determinative of the application, but it then becomes incumbent upon the
applicant to show that the advantages of the particular development in the
particular circumstances are such as to outweigh this harm to such interests.
This is a balancing exercise, since the extent of the harm to green belt
interests and the extent of the advantage to be derived from development can
both vary from case to case, but in the very unlikely event of equilibrium
being reached, the application should be refused.
The giving
of reasons
The
decision-taker should give reasons sufficient to show what was the chain
of reasoning. As applied to green belt applications, this must involve saying
why the proposed development was or was not appropriate to the green belt. If
it was considered to be inappropriate to the green belt, the decision-taker has
to go on to express a view on the weight of the damage which would be done to
the green belt if permission were granted and the weight or lack of weight
which he attaches to the countervailing considerations based upon the alleged
advantages which would stem from allowing the development to proceed.
The local
development plan
Although I
have not seen this plan, it appears to be common ground that it contains two
policy statements (nos 8 and 11) both of which indicate a strong presumption
against new residential development. For my part, I would have liked to have
known whether ‘new residential development’, to use the inspector’s words, was
meant to extend not only to new buildings or structural conversion of an
existing building but also to a change of use where a building became redundant
in terms of its existing permitted use. However, if the parties did not want to
explore this, it is not for me to do so. In any event, the terms of the local
development plan are not conclusive (see Circular 14/85).
Redundant
buildings
We are
concerned with a redundant rural building or, more accurately, a redundant use
for a far from redundant building. Such a situation can arise either inside or
outside the green belt and, accordingly, I turn first to paras 18 and 19 of
policy statement PPG7 [which are headed ‘Redundant rural buildings’] where it
is stressed that:
18. . . .
Proposals for the re-use of redundant buildings should not be rejected unless
there are specific and convincing planning reasons that cannot be overcome by
attaching reasonable conditions to the planning permission.
However, this
is subject to paras 20 and 21, which read:
20. The
general planning principles described above apply throughout the countryside.
There are, however, some supplementary planning controls in specially
designated areas.
21. Thus,
there are special restrictions in Green Belts in order to check the
unrestricted sprawl of large built-up areas and to safeguard the countryside
from further encroachment (see Green Belt PPG for further details).
It should be
noted that the policy set out in PPG7 is not excluded in the case of green belt
applications. It is simply that there are additional special restrictions ‘to
check the unrestricted sprawl of large built-up areas’ and ‘to safeguard the
countryside from further encroachment’, neither of which has any very clear
application to the present case.
Green belt
The green belt
policy is contained in PPG2. Para 4 sets out the five purposes served by having
green belts and these have an obvious bearing on what is and is not appropriate
to a green belt. They are:
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.
Paras 13 and
16 of PPG2 then focus on the specific rather than the general, which had been
dealt with in para 12:
The general
policies controlling development in the countryside apply with equal force in
Green Belts but there is, in addition, a general presumption against
inappropriate development within them.
These
paragraphs provide:
13. Inside a
Green Belt, approval should not be given, except in very special circumstances,
for the construction of new buildings or for the change of use of existing
buildings for purposes other than agriculture and forestry, outdoor sport,
cemeteries, institutions standing in extensive grounds, or other uses
appropriate to a rural area.
16. Green
Belts contain a large number of substantial and attractive agricultural
buildings which, with normal repair and maintenance, can be expected to last
for many years. When these are no longer needed for farming, the planning
authority will need to consider whether they might be appropriately re-used for
other purposes which help to diversify the rural economy. Redundant
agricultural buildings can provide suitable accommodation for small firms or
tourist activities or can be used as individual residences. The re-use of
redundant buildings should not be refused unless there are specific and
convincing reasons which cannot be overcome by attaching conditions to the
planning permission.
It is
certainly the case that para 16 is focusing on buildings which have a
significant further life but are redundant in terms of existing uses. It may
be, although this was not argued, that para 13 is concerned solely with
buildings which are not redundant, but for present purposes I will
assume that some force has to be given to its provisions.
Appropriateness
of the proposed use to a green belt
The inspector
states baldly in para 5 of the decision letter that the change of use of
existing buildings to residential use is not ‘one which could be regarded as
coming within the general category of uses appropriate to a Green Belt’. She
may well be right, but this conclusion does merit a little more explanation in
the context that the pavilion was to be used not for residential use generally
but for a very specific residential use ancillary to the use of Great Martins
itself and that it is not self-evident that the change of use would have any
detrimental effect in terms of the stated purposes of green belts. If her
reasons would not support her conclusion, permission should have been given in
accordance with the general presumption in favour of development.
The inspector
then considers and rejects an argument by the appellant based upon his personal
needs about which I need say nothing. However, in para 7 she rejects para 16 of
PPG2 as being inapplicable, since the pavilion is not, she says, a redundant
agricultural building. This seems to me to give a very narrow construction to
para 16 and the policy which it is expressing. If the use of a redundant barn
or cowshed can be changed to residential use, why not a redundant cricket
pavilion? And, if cricket pavilions are
different, they are still redundant rural buildings within the meaning of the
last sentence of para 16 and the inspector should have considered, but does not
appear to have considered, whether there were specific and convincing reasons
for refusing consent which could not be overcome by attaching conditions to the
planning permission.
In my judgment,
the decision should be quashed upon two grounds. First, the inspector failed to
give any adequate reasons for holding that the change of use was inappropriate
to a green belt, having regard in particular to the stated purposes for which
green belts were created. Second, she misconstrued para 16 of PPG2 or,
alternatively, failed to consider whether there were specific and convincing
reasons for refusing consent which
STUART-SMITH
LJ: Three questions arise for determination in this
appeal.
1. Is the proposed use of the
building for staff accommodation appropriate to a rural area?
Mr Howell’s
submission on behalf of the appellant is that the inspector did not properly
consider the matter. He submits that the inspector decided that residential use
in general was not appropriate; but the appellant was seeking not unrestricted
residential use but residential use specifically restricted for staff employed
at Great Martins.
Planning
Policy Guidance for land in the green belt is to be found in PPG2 (January
1988). Paras 12 and 13 provide:
12. The
general policies controlling development in the countryside apply with equal
force in Green Belts but there is, in addition, a general presumption against
inappropriate development within them.
13. Inside a
Green Belt, approval should not be given, except in very special circumstances,
for the construction of new buildings or for the change of use of existing
buildings for purposes other than agriculture and forestry, outdoor sport,
cemeteries, institutions standing in extensive grounds, or other uses
appropriate to a rural area.
Mr Howell
accepts that some forms of residential use may be inappropriate, for example
housing for those who work in the towns; but he contends that large country
houses are a feature, an agreeable and pleasant feature, of rural England and
the green belt and, if they are to continue to exist, those who live there
require staff, usually both domestic and outdoor staff, to help run and
maintain them. Just as those who work in agriculture or forestry need to live
near their work, so do those who work in a country house. Use of existing
buildings for the purpose of housing such employees is, he argued, appropriate
to a rural area. It is a formidable argument.
He reinforces
it with two further submissions. First, that the law recognises a distinction
between residential use for a particular purpose and general residential use:
see Fawcett Properties Ltd v Buckinghamshire County Council
[1961] AC 636, where a condition for residential use for those engaged in
agriculture was upheld. In this case the appellant is prepared to enter into an
agreement under section 52 of the Town and Country Planning Act 1971, the terms
of which were acceptable to the council, which provided that the pavilion
should not be sold separately from Great Martins and that it should be used
only by employees of the occupier for the time being of the main house.
Second, he
points to the fact that the witness for the council at the inquiry accepted
that staff accommodation for a large country house was an appropriate use in a
rural area. This, of course, is not decisive of the issue, which is one for
determination of the planning authority or the inspector. But it is powerful
evidence in support of the appellant’s case and, if the inspector were to
reject his case, at the very least it was incumbent upon her to give some
reason for doing so. In my judgment, she did not do so. She dealt only with
residential use in general. The judge held that by so dealing with the matter
the inspector had adequately answered the appellant’s case. I do not agree.
2. Would the proposed
development cause harm?
Mr Howell
submits that the Secretary of State’s policy is that planning permission should
be refused only where the development proposed would
applies both inside and outside the green belt. See Circular 14/88 paras 2 and
3 and PPG1 para 15, which provides:
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 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.
Mr Howell
submits that the difference between development outside and inside the green
belt is one of onus of persuasion, and it is this: the onus is upon the local
planning authority to show such harm where the development takes place outside
the green belt or, if the development is appropriate, inside it; but it is upon
the developer where the proposal relates to land inside the green belt and the
development is inappropriate.
This means
that in the case of development inside the green belt a decision-maker has to
go through a three-stage process. First, he has to consider whether the
development is appropriate. Second, he has to consider whether the proposed
development would cause demonstrable harm to an interest of acknowledged
importance. If the answer to the first question is that the development is
inappropriate, then the onus of persuasion is on the developer; if it is
appropriate, it is upon the planning authority. Third, if the developer has so
far failed, he may be able to persuade the decision-maker that there are very
special circumstances why permission should be granted.
Mr Howell
relied in support of his submission on two decisions at first instance: the
first a decision of His Honour Judge Marder QC in Cranford Hall Parking Ltd
v Secretary of State for the Environment [1989] JPL 169 and the second a
decision of Sir Frank Layfield QC in Barnet Meeting Room Trust v Secretary
of State for the Environment (1989) unreported*.
*Editor’s
note: Reported at p 21 ante.
But, with all
respect to those judges, I prefer Mr Sankey’s submission to this court that, in
considering applications for development in the green belt, the process is a
two-stage one and not a three-stage one. The first consideration is whether the
development is appropriate for the green belt. If the answer is ‘Yes’, then the
general presumption applies in favour of the development, unless there is
demonstrable harm to interests of acknowledged importance other than the
preservation of the green belt itself. If the answer is that the development is
inappropriate, then the second stage is to consider whether there are very
special circumstances which justify the particular application. In my judgment,
the reason for this is that the preservation of the green belt is an interest
of acknowledged importance and if the development is inappropriate it is
harmful to that interest.
Guidance as to
what is appropriate development for the green belt is to be found in paras
13-18 of PPG2.
3. Was the inspector correct
in holding that the Secretary of State’s policy of permitting change of use of redundant
buildings in the green belt was confined to redundant agricultural buildings?
There is, to my
mind, some lack of consistency in the various statements of policy and guidance
that have been given by the Secretary of State on this matter.
On April 30
1986 the Secretary of State made the following statement in the House of
Commons:
Where planning
permission is sought for new uses of redundant agricultural buildings, it is
for the local planning authority to consider the application by reference to this
policy (ie para 5 of Circular 42/55) and any other material considerations. But
it would be appropriate to take into account, where material, the need to
diversify the rural economy by encouraging new types of employment and
enterprise. Redundant agricultural buildings can provide very suitable
accommodation for small firms or tourist activities, or can be used for
individual residences, without detriment to the Green Belt and to the benefit
of the local community, especially where the buildings are of attractive
appearance and can be expected with normal repair and maintenance to last for
many years.
In deciding
planning applications for new uses of redundant agricultural buildings in green
belts, I would expect local authorities to have regard to these considerations,
as I, and my Inspectors, shall do in deciding appeals.
In so far as
this relates to the green belt, it seems to be confined to redundant
agricultural buildings.
On May 8 1987
Circular 16/87 was issued. Although it is entitled Development involving
Agricultural Land, it is quite plain that it extends to all rural areas and
is not confined to agricultural land. And it was so held in Uttlesford
District Council v Secretary of State for the Environment [1989] JPL
685 by Mr David Widdicombe QC, sitting as a deputy High Court judge. Para 8
reads:
The
Government continues to attach great importance to the re-use of land which has
become unused or derelict, including vacant land within urban areas, and which
can help relieve the pressure for development in the countryside. The re-use of
existing buildings in rural areas can also help to reduce demands for new
development while also helping new enterprises and providing new jobs. Existing
circulars already emphasise the fact that many commercial and other activities
can be carried on in rural areas without causing unacceptable disturbance and
that proposals for the re-use of redundant buildings should not be refused
unless there are specific and convincing reasons which cannot be overcome by
attaching reasonable conditions to the planning permission. The Government has
made it clear that these principles apply to the re-use of redundant buildings
in Areas of Outstanding Natural Beauty and Green Belts as well as elsewhere in
the countryside.
Note 4 refers
to the statement of April 30 1986. Yet para 8 is clearly not confined to
redundant agricultural buildings.
In PPG7
(January 1988), Rural Enterprise and Development, para 18 states:
There are
often opportunities for re-using existing buildings or adapting them to new
commercial, industrial, residential or recreational uses. Such re-use or
adaptation can help to reduce demands for new development, encourage new
enterprises, and provide new jobs as well as housing needed in an area. Many
commercial and other activities can be carried on in rural areas without
causing unacceptable disturbance. There should generally be no reason for
preventing the adaptation or restoration of existing or derelict dwellings in
the countryside for new uses, provided that their form, bulk and general design
are in keeping with their surroundings. Proposals for the re-use of redundant
buildings should not be rejected unless there are specific and convincing
planning reasons that cannot be overcome by attaching reasonable conditions to
the planning permission.
This gives
effect to Circular 16/87 and makes no distinction between agricultural and
other buildings which are redundant.
Finally, para
16 of PPG2 is in these terms:
Green Belts
contain a large number of substantial and attractive agricultural buildings
which, with normal repair and maintenance, can be expected to last for many
years. When these are no longer needed for farming, the planning authority will
need to consider whether they might be appropriately re-used for other purposes
which help to diversify the rural economy. Redundant agricultural buildings can
provide suitable accommodation for small firms or tourist activities or can be
used as individual residences. The re-use of redundant buildings should not be
refused unless there are specific and convincing reasons which cannot be
overcome by attaching conditions to the planning permission.
That appears to
relate to agricultural buildings.
In Bromley
London Borough Council v Secretary of State for the Environment
(1989) 59 P&CR 100, McCowan J held that Circular 16/87 did not constitute a
change of policy in so far as redundant buildings other than agricultural
buildings are concerned, because it was not in sufficiently clear and
unambiguous terms, and, accordingly, that a redundant coach house in the green
belt was not within para 16 of PPG2. He reversed the decision of the Secretary
of State, holding that he had misconstrued his own policy in thinking that the
new policy applied to all redundant buildings and not just agricultural ones.
The Uttlesford District Council case was not cited to him.
Mr Sankey, on
behalf of the Secretary of State, says that the Secretary of State now accepts
that McCowan J’s judgment was correct. He also refers to paras 20 and 21 of
PPG7 under the heading Specially protected areas.
I cannot see
that these paragraphs are in point here or restrict what is said in para 18 of
that document in any way. The reuse of redundant buildings has nothing to do
with the unrestricted sprawl of built-up areas or safeguarding the countryside
from further encroachment. There is an important difference between the
erection of new buildings and change of use of existing buildings. Both constitute
development for the purpose of the town and country planning Acts; but their
impact on the countryside is quite different.
In my
judgment, for these purposes no rational distinction can be drawn between
agricultural and other buildings that are redundant. Indeed, it may be argued
that the distinction is as often as not meaningless since, if the building is
redundant, it has no present use; one is talking only of its past or last use,
or the use for which it was designed when built. Mr Sankey was unable to
suggest any reason why the policy should apply only to agricultural buildings
that no longer are used as such and not to all redundant buildings. The
Secretary of State should be presumed to have enunciated a rational policy.
I have no
doubt that Circular 16/87 and PPG7 para 18 applied to all redundant buildings
and not just those which had previously had an agricultural use. There is no
warrant for making a distinction between them simply because they are in the
green belt. I would therefore construe para 16 of PPG2 as referring to all
redundant buildings. True it is that the first three sentences refer to former
agricultural buildings; but the last sentence does not. I do not think that
such a document should be construed with the same strictness as a statute. No
doubt the commonest type of redundant building in the green belt, as in other
rural areas, is agricultural; I suspect it is for that reason that it achieved
such prominence in para 16.
Even if I am
wrong in my construction of para 16, I consider that PPG2 has to be read in the
light of Circular 16/87 and PPG7 and, consequently, all redundant buildings
should be treated on an equal footing, whether their previous use was
agricultural or not. That is not to say that there may not be
that planning permission for change of use should be given, no matter how
unsuitable, unsightly or temporary the existing building may be for the
proposed new use. Those considerations do not arise in this case; the pavilion
can be converted to a house perfectly satisfactorily.
I would allow
the appeal on the first and third grounds and quash the decision.
STAUGHTON
LJ: Mr Pehrsson is the owner of a large country
house called Great Martins, at Shurlock Row, Berkshire. It is separated from
the village by a field, which was formerly used as a cricket ground. At the far
end of the field, near to the village, is the cricket pavilion, of brick and
tile construction. Mr Pehrsson applied for planning permission to the Windsor
and Maidenhead Royal Borough Council so that the pavilion could now be used as
a residence for staff at Great Martins. The council refused permission. There
was an appeal to the Secretary of State for the Environment. In the course of those
proceedings Mr Pehrsson offered to execute an agreement under section 52 of the
Town and Country Planning Act 1971, if planning permission were granted, so as
to ensure that the pavilion was not subsequently sold off separately or
occupied otherwise than by the inhabitants of Great Martins or persons employed
there. An inspector appointed by the Secretary of State dismissed the appeal.
Mr Pehrsson
applied to quash the inspector’s decision, but that application was dismissed
by His Honour Judge Marder QC, sitting as a judge of the High Court, on
September 29 1989. Mr Pehrsson now appeals to this court.
Great Martins
and the pavilion are in the metropolitan green belt.
Three points
are taken by Mr Howell on behalf of Mr Pehrsson. They are (although not in the
order which he stated them):
1. that the
inspector failed to find that any demonstrable harm would be caused by the
development and therefore should have granted planning permission;
2. that the
inspector made no finding as to whether residential use for the staff of a
large country house was an appropriate use in the green belt or gave inadequate
reasons for finding that it was an inappropriate use; and
3. that the
inspector wrongly interpreted the Secretary of State’s policy about planning
permission for redundant buildings as confined, in the green belt, to redundant
agricultural buildings.
All three
complaints involve a consideration in some detail of the published policy
documents of the Secretary of State.
1. Demonstrable harm
The Secretary
of State’s document PPG1, dated January 1988, has the title General Policy
and Principles. Para 15 reads:
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.
To anybody but
a lawyer it would be crystal-clear that the general presumption in the second
sentence of that paragraph is subject to an exception in the case of
‘inappropriate development in the Green Belt’.
Even a
lawyer’s doubts are stilled if one turns to PPG2, also published in January
1988, and titled Green Belts. That document provides:
12. The
general policies controlling development in the countryside apply with equal
force in Green Belts but there is, in addition, a general presumption against
inappropriate development within them.
13. Inside a
Green Belt, approval should not be given, except in very special circumstances,
for the construction of new buildings or for the change of use of existing
buildings for purposes other than agriculture and forestry, outdoor sport,
cemeteries, institutions standing in extensive grounds, or other uses
appropriate to a rural area.
The combined
effect of PPG1 and PPG2 is, in my judgment, that one must first determine
whether a proposed development is appropriate in a green belt or inappropriate.
If it is appropriate, the general presumption applies, so as to favour the
grant of planning permission unless it is shown that the development would
cause demonstrable harm to interests of acknowledged importance. If, on the
other hand, the proposed development is inappropriate, planning permission
should not be granted unless the developer can show very special circumstances.
If and to the
extent that the decision in Cranford Hall Parking Ltd v Secretary of
State for the Environment [1989] JPL 169 is inconsistent with that
analysis, in my opinion it was wrongly decided — perhaps because, as Mr Sankey
frankly admits, he did not argue the point in the same way in that case as he
has before us.
In the present
case the inspector found that the proposed development was inappropriate.
Whether that conclusion can stand falls to be considered under issue 2 below.
But, so long as it does stand, the inspector was under no duty to embark upon
the topic of demonstrable harm to an interest of acknowledged importance. The
question for her was whether the developer had shown very special
circumstances, so as to justify the grant of planning permission. She found
that he had not.
2. Is a residence for staff
of a large country house appropriate or inappropriate?
Seeing that
appropriateness is a threshold question, where the result determines the future
course of the inquiry, I consider that it should be answered in general terms,
without examining the proposed development in detail at that stage. Para 13 of
PPG2 gives some examples of use which is appropriate in a green belt and then
adds ‘or other uses appropriate to a rural area’. The inspector dealt with the
point in para 5 of her decision letter. Clearly, she had well in mind that the
proposal was for use as staff accommodation at Great Martins. She concluded:
. . . the
construction of new dwellings or the change of use of existing buildings to
residential use is not one of the uses specifically referred to in Planning
Policy Guidance Note 2 or one which could be regarded as coming within the
general category of uses appropriate to a Green Belt.
Provided that
one excludes residence for those engaged in agriculture or forestry or the
other purposes specifically mentioned, I do not feel able to say that the
inspector was wrong in law when she decided that residential use generally was
not appropriate in a green belt. If she took the view (as she did) that
residential use in a green belt, whether it involved a new building or a change
of use, was not something which should benefit from the general presumption in
favour of development but rather be justified only by very special
circumstances, I cannot say that she was wrong in law. Nor does Mr Howell urge
us to do so. His complaint is that the inspector has not dealt with
the specific argument which was put to her, that residential use as staff
accommodation for a large country house was appropriate in a green belt.
I do not think
it right to demand such a high degree of precision from the inspector in giving
her reasons. If she took the view that all residential use (other than any in
the specified categories) was inappropriate, I do not see that she was obliged
to add that the greater includes the less or that ‘all’ residential use
includes staff accommodation for a large country house. She had, as I have
already said, made it clear in para 5 itself that she had in mind the use which
was proposed.
There are, as
Mr Howell showed us, cases which establish that one kind of residential use may
be different from another for planning purposes: see Fawcett Properties Ltd
v Buckinghamshire County Council [1961] AC 636; Birmingham
Corporation v Habib Ullah [1964] 1 QB 178. But it does not follow
that for all planning purposes different kinds of residential use must be
treated differently. Lord Parker of Waddington CJ rejected that view — or the
converse of it — in the Birmingham Corporation case, at p 189:
Because
Parliament intended that certain considerations should apply to the whole genus
of dwellinghouse, it does not follow that one cannot, as it were, divide up the
genus into various species when considering whether there has been a change of
use.
Before leaving
the point I would add this: although an inspector is entitled in law to hold
that all residential use (other than any in the specified categories) is
inappropriate in a green belt, it does not follow that the same or another
inspector would be bound by law to reach the same conclusion in another case.
The issue is one of fact and planning judgment, not of law. If it is
inconvenient or appears capricious — as perhaps it may — that cases which are
somewhat similar should be treated differently, the remedy is for the Secretary
of State to enlarge upon para 13 of PPG2. Although the decision on
appropriateness is not determinative of an application for planning permission,
it is certainly of importance, since it regulates who has the burden of
persuasion and also what test he has to satisfy.
3. Redundant buildings
The inspector
in para 7 of her decision letter considered that redundant buildings in a green
belt raised special considerations only if they were redundant agricultural
buildings. It is arguable that there is not much rhyme or reason in the policy
if it thus attaches significance to the past history of a building which is of
no present relevance — unless it be thought that agricultural buildings have
some special character or appearance, which makes it desirable to encourage
their preservation and use for other purposes. But the question is not whether
the policy is logical; it is whether the inspector correctly found what the
policy was.
This point has
some history. First, there was a policy statement by the Secretary of State for
the Environment in the House of Commons on April 30 1986, which is set out in
the report of Bromley London Borough Council v Secretary of State for
the Environment (1989) 59 P&CR 100 at p 110. It is expressly confined
to redundant agricultural buildings in a green belt.
Next, there is
Circular 16/87, headed Development Involving Agricultural Land (Encyclopedia
of Planning Law and Practice vol 4 p 41054), which has this passage:
The re-use of
existing buildings in rural areas can also help to reduce demands for new
development while also helping new enterprises and providing new jobs. Existing
circulars already emphasise the fact that many commercial and other activities
can be carried on in rural areas without causing unacceptable
be refused unless there are specific and convincing reasons which cannot be
overcome by attaching reasonable conditions to the planning permission. The
Government has made it clear that these principles apply to the re-use of
redundant buildings in Areas of Outstanding Natural Beauty and Green Belts as
well as elsewhere in the countryside.
It is not
mentioned there that the policy is restricted to redundant buildings which were
agricultural; but there is footnote reference to the statement of April 30
1986.
Third, there
is PPG2 para 16, which reads:
Green Belts
contain a large number of substantial and attractive agricultural buildings
which, with normal repair and maintenance, can be expected to last for many
years. When these are no longer needed for farming, the planning authority will
need to consider whether they might be appropriately re-used for other purposes
which help to diversify the rural economy. Redundant agricultural buildings can
provide suitable accommodation for small firms or tourist activities or can be
used as individual residences. The re-use of redundant buildings should not be
refused unless there are specific and convincing reasons which cannot be
overcome by attaching conditions to the planning permission.
The last
sentence in that paragraph is not confined to redundant buildings that are
agricultural. But the preceding three sentences show that, if considered on its
own, the paragraph is dealing only with buildings of that description.
Finally, there
is PPG7, also of January 1988, headed Rural Enterprise and Development.
There para 18 reads:
There are
often opportunities for re-using existing buildings or adapting them to new
commercial, industrial, residential or recreational uses. Such re-use or
adaptation can help to reduce demands for new development, encourage new
enterprises, and provide new jobs as well as housing needed in an area. Many
commercial and other activities can be carried on in rural areas without
causing unacceptable disturbance. There should generally be no reason for
preventing the adaptation or restoration of existing or derelict dwellings in the
countryside for new uses, provided that their form, bulk and general design are
in keeping with their surroundings. Proposals for the re-use of redundant
buildings should not be rejected unless there are specific and convincing
planning reasons that cannot be overcome by attaching reasonable conditions to
the planning permission.
That, too, is
not in terms confined to ex-agricultural buildings. However, para 21 adds that
there are special restrictions in green belts.
Considering
this material as a whole, I find that the Secretary of State’s policy for the
reuse of redundant buildings in a green belt is not confined to buildings that
were formerly agricultural. I reach that conclusion more readily because, as I
have said, the past history of a building seems of little importance once it is
redundant.
It follows
that, in my judgment, the inspector erred in para 7 of her reasons; and it is
possible that the error was of importance to her decision. I would, therefore,
on that ground alone, allow the appeal and quash the decision.
Appeal
allowed with costs.
