Metropolitan open land (MOL) – First and second appellants applying for permission to erect replacement dwelling – Replacement substantially larger than extant dwelling – Planning officer preparing report taking account of effect upon openness of land – Third appellant planning authority granting permission – Court quashing decision on basis that proposed development inappropriate – Whether “materially larger test” importing simple comparison of size or broader planning judgment – Appeal dismissed
The first and second appellants submitted an application to the third appellants, as the local planning authority, for planning permission to replace an existing dwelling on metropolitan open land (MOL) on the fringe of Hampstead Heath in north London. The extant dwelling, including a garden shed, measured 186m2, but it was proposed that the replacement building would cover a floorspace of 626m2.
The third appellants’ planning officer prepared a report for the planning committee, taking into account factors such as visual intrusion, the effect upon the character and setting of the MOL and the demonstrable harm from the proposed development on a site of predominantly open character. She concluded that the proposal amounted to “appropriate” development that would maintain the openness of the MOL within the relevant statutory development plan. The third appellants adopted the planning officer’s reasoning and granted planning permission for the development.
The respondent society, one of whose aims was to protect Hampstead Heath, applied for judicial review of that decision, contending that the third appellants had: (i) failed properly to direct themselves on the issue of appropriate development on the MOL; (ii) taken extraneous matters into account when considering that issue; and (iii) perversely determined that planning permission should be granted. Accordingly, the grant of planning permission should be quashed.
The High Court quashed the permission on the basis that the officer’s advice and the decision based upon it reflected a misinterpretation of the applicable policy. The correct test was not whether the replacement dwelling would be visually intrusive or cause demonstrable harm to the openness of the MOL, but whether the replacement dwelling was “materially larger” than the extant dwelling as set out in PPG 2: see R (on the application of Heath & Hampstead Society) v Camden London Borough Council [2007] EWHC 977 (Admin); [2007] 2 P&CR 19. The appellants appealed contending that, in policies designed to protect the MOL, the development was not “materially larger” if the third appellants could reasonably have taken the view that the increase had no “material” effect upon the objectives of the MOL.
Held: The appeal was dismissed.
The third appellants had misunderstood and misapplied the MOL policy. They could not reasonably have concluded that a building more than twice as large as the original, in terms of floor space, volume and footprint, was not “materially larger”.
The words “materially larger” in para 3.6 of PPG 2 should not be read in isolation. Paragraph 3.6 formed part of the test for a category that covered “limited extension, alteration or replacement…”. “Limited” implied a limitation of size. Paragraph 3.6 dealt with both extension and replacement. An extension had to be “proportionate” to the size of “the original building”, which was intended to be tightly drawn, in order to avoid a gradual accretion of extensions, each arguably “proportionate”. It was impossible to argue that “proportionate” in that context was unrelated to relative size. The words “replacement” and “not materially larger” had to be read together and in the same context.
Size was the primary test. The general intention was that the new building should be similar in scale to that which it replaced. Some qualification to the word “larger” was required. A small increase might or might not be significant in planning terms, depending upon such matters as design, massing and disposition on the site. The qualification provided the necessary flexibility to allow planning judgment and common sense to play a part and it was not a precise formula. However, that flexibility did not justify stretching the word “materially” to produce a different, much broader test. Where the authors of PPG 2 intended a broader test, they clearly said so.
David Elvin QC and Charles Banner (instructed by David Cooper & Co) appeared for the first and second appellants; Peter Harrison QC (instructed by of the legal department of Camden London Borough Council) appeared for the third appellants; Anthony Porten QC (instructed by Hunt & Lisners) appeared for the respondent.
Eileen O’Grady, barrister
