Metropolitan open land (MOL) – Interested party applying for permission to erect replacement dwelling – Replacement dwelling substantially larger than extant dwelling – Planning officer preparing report taking account of effect upon openness of land – Defendant planning authority granting permission – Claimant seeking to quash permission on basis that proposed development inappropriate – Whether MOL having same protection as green belt – Whether defendants applying correct test for appropriateness – Application allowed
The interested party submitted an application to the defendants, as 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 defendants’ planning officer considered the application and 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 that might result from the proposed development on a site of predominantly open character. She concluded that the proposal put forward by the interested party amounted to “appropriate” development that could maintain the openness of the MOL in accordance with the relevant statutory development plan. The defendants subsequently adopted the planning officer’s reasoning and granted planning permission for the development.
The claimant society, one of whose primary aims was to protect Hampstead Heath, applied for judicial review of that decision, contending that the defendants 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 questions for the court were whether: (i) MOL should have the same protection as green-belt land; and (ii) the planning officer had applied the correct test adopted by the defendants when granting planning permission.
Held: The application was allowed.
It as clear from the relevant statutory development plan that MOL should be given the same protection as green-belt land so that the principles of control over development in the green belt set out in PPG 2 also applied to MOL. As with green-belt land, there was a strong presumption against inappropriate development on MOL, which could only be displaced by very special circumstances.
The relevant test of appropriateness was the “limited replacement of existing dwellings”, which required the decision maker to compare the existing dwelling to the proposed new dwelling. 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.
That did not require a comparison of perceived dimensions, but, rather, a mathematical exercise of considering the true size of the replacement dwelling as against that of the extant dwelling.
In the present case, the planning officer’s report, and the consequent decision of the defendants to grant planning permission in reliance upon it, had been concluded on an incorrect basis and the planning permission would be quashed: Surrey Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] JPL 379 (Note) considered.
David Altaras (instructed by JF Hunt & Co, of Northampton) appeared for the claimant; Peter Harrison QC and Karen McHugh (instructed by the legal department of Camden London Borough Council) appeared for the defendants; David Elvin QC and Charles Banner (instructed by David Cooper & Co) appeared for the interested party.
Eileen O’Grady, barrister
