Planning permission — Green belt — Structure plan policy — Need for on-site staff accommodation as part of an institutional use — Section 54A of the Town and Country Planning Act 1990 — Whether development appropriate or necessary within green belt — Whether correct to use test of essentiality
The second
respondent, the Church of Jesus Christ of Latter-Day Saints, was refused
outline planning permission to construct on-site accommodation apartments for
the use of their employees. In January 1995 the Secretary of State for the Environment,
by his inspector, allowed the church’s appeal. On an application by the
council, the grant of planning permission was quashed in the court below. The
church appealed against that decision contending that the judge had applied the
wrong test when considering whether the proposed development was ‘appropriate
or necessary’ within the green belt in accordance with the development plan.
There was no
justification for adopting the construction of ‘essential requirement’ as the
judge in the court below purported to do, as a matter of consistency, or for
any other reason. Policy C4 of the structure plan does not make any stipulation
about institutional development within extensive grounds, other than that it
should be appropriate or necessary. To introduce a test of essentiality is to
introduce a test which is not there. It is right to have regard to whether, and
to what extent, a need has been demonstrated on the part of the applicant, as
the inspector did. But that is far from establishing any formal requirement of
essentiality arising from policy C4: see p44D.
referred to in the judgments
Appeal against
the decision of Mr Gerald Moriarty QC
This was an
appeal by the Church of Jesus Christ of Latter-Day Saints against the decision
of Mr Gerald Moriarty QC, sitting as a deputy judge of the Queen’s Bench
Division, quashing the grant of planning permission for the development of part
of their land within a green belt area.
(instructed by the solicitor to Tandridge District Council) appeared for the
appellant council.
respondent, the Secretary of State for the Environment, did not appear and was
not represented.
Newberry QC (instructed by Devonshires) appeared for the second respondent, the
Church of Jesus Christ of Latter-Day Saints.
following judgments were delivered.
LEGGATT LJ: The London Temple is the place of worship of the Church of Jesus
Christ of the Latter-day Saints (‘the church’). It is five storeys high and
dominates extensive grounds at Lingfield, Surrey. Also in the grounds nearby
are three two-storey buildings. By an application dated January 22, the church
applied for outline planning permission to construct, in the area of their
existing car park, what was called an ‘accommodation facility’ consisting of 18
single apartments and four two-bed apartments for their employees.
Tandridge
District Council (‘the council’) refused planning permission. The church
appealed to the Secretary of State for the Environment. He appointed an
inspector who, by his decision letter of January 13 1995, allowed the appeal.
But on November 3 1995 Mr Gerald Moriarty QC, sitting as a deputy judge of the
Queen’s Bench Division, allowed an application by the council under section 288
of the Town and Country Planning Act 1990 (‘the Act’) and quashed the planning
permission. Against his order the church now appeals. The Secretary of State
has played no part in the appeal, which has been resisted by the council alone.
Section 54A of
the Town and Country Planning Act 1990, as inserted by the Planning and
Compensation Act 1991, provides that:
Where, in
making any determination under the planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations indicate otherwise.
It is common
ground that the development plan comprises the structure plan and the local
plan. Policy C4 of the Surrey Structure Plan and policy 3 of the South of the
Downs Local Plan, are, so far as material, in similar terms. For present
purposes either policy may be treated as constituting the development plan and,
for convenience, I shall refer only to policy C4. That policy contemplates that
‘private institutional development with extensive grounds’, which this
admittedly was, ‘may be appropriate or necessary in the Green Belt, but will
not be considered acceptable development as of right’.
The church’s
task before the inspector, therefore, was to show that their proposed
development was appropriate or necessary. PPG 2 of 1988 afforded a material
consideration. In it, para 12 contains a general presumption against what is
called ‘inappropriate development’. There follows in para 13 a statement which
may be regarded as neutral that:
Inside a
Green Belt, approval should not be given, except in very exceptional
circumstances, for the construction of new buildings … for purposes other than
… institutions standing in extensive grounds …
Unwinding the
exception upon an exception, new buildings for an existing institution are not
within the category for which approval should only be given exceptionally.
At the date of
the inspector’s decision, two draft documents were in being, a draft
replacement structure plan and revised draft PPG 2. The replacement structure
plan PE2 states that:
development
will not normally be permitted except for uses appropriate to the Green Belt,
including the essential requirements of agriculture or forestry, outdoor sport
and recreation, cemeteries, and institutions within extensive grounds.
It may well be
that, having regard to the language of the structure plan itself, the words in
the passage I have cited from the structure plan ‘the essential requirements
of’, govern only agriculture and forestry. The draft PPG 2, on the other hand,
deleted ‘institutions in extensive grounds’ on the basis that the category is
inappropriate to the green belt and difficult to define. But when the deputy
judge came to consider that matter, he held after referring to PPG 1 of 1992
that:
It seems to
me that that guidance allows an inspector to decide for himself what weight he
will attach to any emerging policy in the form of a draft guidance note.
There is no
appeal against that finding. It is common ground that the inspector was
entitled to decide whether he would give any, and if so what, weight to the
draft PPG 2, or indeed to the deposited replacement structure plan, even though
that came into force a month or so after the publication of the inspector’s
decision letter.
Since the
revised PPG 2 differs from policy C4, it would be surprising, if not
objectionable, if the inspector had paid any attention to it in his consideration.
In the event, para 6 of his decision letter shows that he came to his
conclusions on the basis of the existing guidance.
The deputy
judge rightly started by expressing a reluctance to interfere with the findings
of an inspector who had plainly conducted a very careful inquiry. To do so by
taking an over subtle view of the correct interpretation of the structure and
local plans, comprising the development plan, may be thought undesirable,
especially in view of the fact that the deputy judge never actually recited the
relevant terms, either of the structure plan or of the local plan. After
identifying what he called ‘the three elements of relaxation’ in policy C4, the
deputy judge said:
In this
context, appropriateness seems to me to involve both a test of character and a
test of essentiality or necessity or necessary requirement.
He sought
support for that conclusion by saying that he accepted the submission of Mr
Timothy Comyn for the council that:
… as a matter
of consistency, Policy C4 always requires a developer to show that his
development is for the essential requirements of agriculture in the
first category, or of mining in the second category, or of institutional
development in the third, as the case may be.
This
formulation applies the test of essential requirement to the two categories,
other than the category of agriculture and forestry, to which alone it is
applied by that policy. The layout of the policy is to be borne in mind. First
it provides that:
Outside
settlements in the Green Belt, local planning authorities will not normally
permit development except for the essential requirements of agriculture or
forestry, and any permissions granted will include conditions designed to
restrict the use to that purpose for which it was permitted.
Then, after
mentioning dwellings for agricultural and forestry workers with which we are
not concerned, in the ensuing paragraph the policy says, so far as material:
Certain other
developments, including outdoor recreational facilities, mineral working, waste
disposal, public or private institutional development within extensive grounds
and gipsy caravan sites may be appropriate or necessary in the Green Belt but
will not be considered acceptable development as of right.
Although the
deputy judge purported to apply to the other developments referred to in the
latter paragraph the same test of essential requirements which is expressly
referred to in para 1, there was, in my judgment, no justification for adopting
that construction, whether, as he purported to do, as a matter of consistency,
or for any other reason. Policy C4 does not make any stipulation about
institutional development within extensive grounds, other than that it should
be appropriate or necessary.
To introduce a
test of essentiality (as Mr Comyn attempted to do by reference to the language
of policy C4 which I have read), is to introduce a test which is not there. No
doubt in considering the question what is appropriate in a green belt it is
right to have regard to whether, and to what extent, a need has been
demonstrated on the part of the applicant, as the inspector did. But that is
far from establishing any formal requirement of essentiality arising from
policy C4. Mr Comyn submits that the inspector made a mistake when he equated
the test under policy PE2 with that under policy C4, as he appears to have done
when, as the deputy judge put it, he ‘lumped together’ the structure plan, the
local plan and policy PE2 in para 7 of the decision letter. But, as I have
indicated, the inspector’s construction of policy PE2 may well have been right.
In any event, since policy C4 was determinative and policy PE2 was only capable
of constituting a material consideration, I see no force in the argument that,
if he had adopted Mr Comyn’s construction of policy PE2, the inspector’s
conclusion might well have been different. It was a matter for him whether to
give it any, and if so what, weight.
Having dealt
with the question of need in paras 9 to 13 of the decision letter, most of the
remainder of the letter was taken up with consideration of the question whether
the proposed development was properly
… the
institution pre-dates the area’s designation as Green Belt, and … the use and
buildings remain appropriate within it.
He had earlier
referred in para 12 to the inadequacy of the accommodation for the 17 permanent
staff as being ‘not seriously disputed’, and he referred also to his inspection
of the building that at present houses them.
The inspector
summarised his findings at para 17 by saying:
I thus
consider that there is a sufficient causal connection between the purpose of
the Temple, the activities associated with it, and the need for additional
on-site staff accommodation for the proposed building properly to be described
as part of the institutional use. Taking account also of the fact that, when
erected, the total area of the buildings would cover under 5.5% of the site, I
conclude that the apartments would amount to appropriate development in the
Green Belt.
Mr Comyn has
sought to argue that, reading that paragraph with the attention it deserves, it
may be seen that the inspector was merely equating the need for a connection
between the proposed development and the existing institution with the test of
appropriateness that the inspector had to apply.
In my
judgment, in the light even of the short passages that I have read from the
decision letter, such a conclusion would not be justified. It seems to me that,
without any reliance upon any presumption, the inspector’s conclusion that the
development is appropriate, is supported by the considerations he mentioned,
which, incidentally, also make a case for saying that the development is
‘necessary’. As the notes to policy PE2 say, ‘evidence of the need for the
development must be demonstrated’. It manifestly was. When the inspector
referred to 5.5% coverage in para 17, he clearly meant no more than that the
development was not so substantial as to prevent it from being appropriate.
In short, the
inspector found that the new accommodation will form part of the existing
institution which is itself acceptable, and that it is needed for the staff. He
also considered that the impact of the proposed development on the green belt
would be limited and so unexceptionable. He therefore held that it was
appropriate, both in itself and in context.
In my
judgment, the deputy judge ought not to have interfered with that conclusion. I
would therefore allow the appeal, set aside the order of the deputy judge of
November 3 1995, and reinstate the inspector’s decision given by his letter of
January 13 1995.
POTTER LJ: I agree.
JUDGE LJ: I also agree.
Appeal
allowed with costs.
