Green belt — Local plan — Boundary of green belt — Whether inconsistent with policy of structure plan — Whether council gave adequate reasons for including appellant’s land within green belt
The appellant,
Mr Tyler, is the owner of land on the outskirts of Portishead, Avon. Under the
South West Avon Green Belt Local Plan his land, together with other land, had
been brought into a new green belt designed and intended to prevent a
coalescence of the towns of Clevedon and Portishead and for the wider purpose
of surrounding and separating Bristol and Bath. At the public local inquiry
into the plan the appellant had objected to the inclusion of his and other land
in the green belt, contending that its boundary was ‘drawn too tightly against
existing development on land between Portishead eastwards to Weston Big Wood’
and that Weston Big Wood would provide a natural and permanently defensible
eastern boundary. Despite this objection the inspector recommended that all the
proposed land at Portishead be included in the green belt. When dealing
specifically with Mr Tyler’s objection the inspector concluded that if his land
were to be excluded it would create a ‘hole’ in the green belt. The council
accepted the inspector’s recommendation.
The appellant
applied under section 287 of the Town and Country Planning Act 1990 to quash
that part of the plan, contending (1) that the local plan was inconsistent with
the structure plan in that the green belt boundary as drawn left no or no
sufficient room for future development of Portishead in accordance with policy
GB5 of the structure plan; and (2) that the council’s decision was Wednesbury
unreasonable. On November 24 1989 Mr Malcolm Spence QC, sitting as a deputy
judge of the Queen’s Bench Division, rejected both submissions and dismissed
the application. Mr Tyler appealed. At the hearing of the appeal, counsel then
appearing did not pursue the Wednesbury point but argued that the
council’s reasons for including Mr Tyler’s land in the green belt were
inadequate.
appeal was allowed.
1. There was
no inconsistency between the local plan and the structure plan, since policy
GB5 did not require that land suitable for the future development
the appellant’s land; it would suffice if such land existed and was excluded
from the green belt elsewhere in or around Portishead and there was no evidence
that this had not been achieved: see p 100.
2. However,
the inspector’s reasons, which the council had adopted, were inadequate to deal
with the substantial points raised by the appellant in his objection. No
reasons had been given for rejecting his submission that Weston Big Wood should
be the eastern boundary of the green belt. Exclusion of the appellant’s land
would create a hole in the green belt only if three other areas were also
included, two of which the inspector had said that he was not convinced it was
necessary to designate as green belt and the third the council had not
originally proposed to be part of the green belt. Neither the inspector nor the
council had given any proper or intelligible reasons for including these three
areas, nor had they explained why adequate protection for these sites could not
be achieved by applying landscaping or other planning considerations to any
application to develop: see p 103B-F.
Decision of Mr
Malcolm Spence QC reversed.
to in the judgments
Poyser
and Mills’ Arbitration, Re [1964] 2 QB 467; [1963]
2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills [1963]
EGD 421; (1963) 185 EG 609
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeal against
decision of Mr Malcolm Spence QC
This was an appeal
by Basil Peter Tyler against the refusal of Mr Malcolm Spence QC, sitting as a
deputy judge of the Queen’s Bench Division, to quash part of the South West
Avon Green Belt Local Plan.
Milner (instructed by Rodney King, of Bristol), who did not appear below,
appeared for the appellant, Basil Peter Tyler.
Ward (instructed by the county solicitor, Avon County Council) appeared for the
respondents.
following judgments were delivered.
LORD
DONALDSON OF LYMINGTON MR: Mr Tyler appeals from a
refusal by Mr Malcolm Spence QC, sitting as a deputy High Court judge, to
exercise the power of the court under section 287 of the Town and Country
Planning Act 1990 (formerly section 244 of the 1971 Act) to quash part of the
South West Avon Green Belt Local Plan. Although at the relevant time the 1971
Act was in force, the 1990 Act is a consolidating statute and as it was
considered convenient to refer only to that Act in argument, I follow the same
course in this judgment.
Mr Tyler is
the owner of land on the outskirts of Portishead to the south west of Fore Hill
and to the north east of Weston Big Wood. Under the terms of the local plan
this land, among much other land, has been brought into a new green belt
designed and intended inter alia to prevent a coalescence of the towns
of Clevedon and Portishead and for the wider purpose of surrounding and
separating Bristol and Bath.
Let it be said
at once that the court is not concerned with planning merits. Its powers under
the section can be invoked only if the local plan is not within the powers
conferred by the relevant part of the statute (‘an ultra vires
complaint’) or if a requirement of the statute or of any regulations made under
it has not been complied with (‘a procedural complaint’). Mr Milner of counsel
appearing for Mr Tyler in fact relies upon both heads.
The ‘ultra
vires’ complaint
The power to
make a local plan is conferred by section 36 of the Act and it is common ground
that in the light of subsection (3), which requires the local planning
authority to have regard to any considerations which appear to them to be
relevant, such a plan must be consistent with the general policy framework of
the structure plan for the area made by the appropriate planning authority and
approved by the Secretary of State under section 31.
The Secretary
of State’s letter of approval dated July 26 1985 records in para 9.3 that the
general thesis of the panel which examined and inquired into the draft
structure plan ‘was that the Green Belt should have a long-term efficacy, with
the inner boundary drawn with due allowance for some further development beyond
1991, so as to ensure that it would not need to be altered in the foreseeable
future’. This is in accordance with the Secretary of State’s national planning
policy on green belts contained in Circular 14/84.
Consistently
with this, GB5 and GB6 of the structure plan provided as follows:
GB5. The
areas of Keynsham, Portishead, Saltford, and other settlements with reasonable
access to a primary level of community services and facilities and suitable for
a scale of development in excess of that permitted by policy GB6, generally
will be excluded from the Green Belt.
GB6. Within
the Green Belt permission will 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, forestry, outdoor
recreation, cemeteries, crematoria, institutions standing in extensive grounds
or other uses appropriate to a rural area. Residential development, restricted
to infilling, normally will be permitted within the existing limits of
settlements in the Green Belt only where development will not prejudice the
character of the settlement and the purposes of the Green Belt.
There was some
discussion as to the meaning which was to be attached to the word ‘generally’
in GB5 and I have concluded that what is meant is ‘usually’ or ‘in general’. In
other words, where there are areas of Portishead which are, or may in the
foreseeable future be, suitable for a scale of development in excess of that
permitted under GB6, those areas should usually, or in general, be excluded
from the new green belt. It was also implicit in the structure plan and made
explicit by the terms of the Secretary of State’s letter approving the draft
plan with modifications that the precise boundaries of the green belt would
fall to be determined by local plans.
The local plan
draws the boundary of the green belt hard up against existing development to
the north and east of Mr Tyler’s property. There was some dispute as to whether
there was scope for development on sites 5/2/1 and 5/2/2 to the west, but on no
view were the sites other than small.
It is against
this background that Mr Milner submits that the local plan is inconsistent with
the structure plan in that there is no or no sufficient room for development in
accordance with GB5. The weakness of this submission lies in the fact that GB5
does not require that land suitable for the future development of Portishead
shall be excluded from the green belt in the neighbourhood of North Weston and
Mr Tyler’s land. It would suffice if it existed and was excluded from the green
belt elsewhere in or around Portishead and there is no evidence that this has
not been achieved. Accordingly, I would not uphold this complaint.
The
procedural complaint
Section 42 of
the Act requires the local planning authority to hold a local inquiry where
there are objections to the draft local plan and not all the
and Inquiries Act 1971 applies to such an inquiry and by section 12 of that Act
the inspector is required, if so requested, to furnish a statement of the
reasons for his decision. The inspector reports to the local planning authority
and that authority are required by regulation 29 of the Town and Country Planning
(Structure and Local Plans) Regulations 1982 (SI 1982 No 555) as part of its
consideration of objections to
consider the
report of the person appointed to hold the inquiry or other hearing and decide
whether or not to take any action as respects the plan in the light of the
report and each recommendation, if any, contained therein; and the authority
shall prepare a statement of their decisions, giving their reasons therefor.
As was only to
be expected, there was a very large number of objections to the draft green
belt local plan and an inquiry was duly held. I have no doubt that the
inspector was requested to give his reasons, as he did so and they ran to some
500 paragraphs, an exercise which no one would have undertaken if it were
unnecessary. Mr Tyler was among those who objected, albeit somewhat late in the
day although nothing now turns on that. His basic objection was that the green
belt boundary was ‘drawn too tightly against the existing development on land
between Portishead eastwards to Weston Big Wood’. This was elaborated in a
15-paragraph submission. For present purposes it suffices to say that he was
objecting to the green belt peninsula jutting in a north-easterly direction
into the heart of Portishead and North Weston (which he regarded as part of
Portishead), whose apex was Fore Hill and whose base was Weston Big Wood. He
pointed out that Weston Big Wood ‘is the subject of a blanket tree preservation
order and is therefore a physical barrier to development and would therefore
make a perfect green belt boundary on its eastern edge and would be permanent
and could be defended as permanent in the long term’.
While the
position might be clearer if I annexed a map of the area to this judgment, I
think that it is only necessary to say that the green belt peninsula to which
Mr Tyler was referring consisted not only of his own land (other than that
within the Weston Big Wood tree preservation area) but also of sites 5/3, 5/4,
5/5 and 5/8 to the east and north of his land. Site 5/8 is at the north-eastern
tip of the peninsula to which Mr Tyler was objecting and is probably the top of
Fore Hill. Leading up to it from the south west are sites 5/5 and 5/4 in that
order. Site 5/3 is separated from these sites by Mr Tyler’s land and forms a
narrow corridor on its eastern boundary separating it from the built-up area of
North Weston.
The inspector
in his report recorded that the council had not originally proposed that site
5/8 be included in the green belt. However, in the light of representations
from the Avon Wildlife Trust the council changed their mind. So far as sites
5/4 and 5/5 were concerned, the inspector commented that, if they were
developed, site 5/8, which no one suggested should be developed, would be
completely surrounded by development. He continued:
336. I
consider that Fore Hill should be preserved as an open area linked to open land
to the south west and, although I am not entirely convinced that Green Belt
designation is necessary for this purpose, it is the only proposal before me
and there are no objections to the remainder of Fore Hill being included in the
Green Belt.
337.
Accordingly I recommend that Sites 5/4 and 5/5 be included in the Green
Belt.
Mr Tyler,
while accepting that site 5/8 should not be developed on landscaping grounds,
was contending that all three sites should be excluded
necessary for green belt purposes, bearing in mind that such a designation
severely restricts the freedom of the owner of the land for the time being to
develop it even if, were it excluded from the green belt, planning permission
might perhaps be refused on other grounds.
So far as site
5/3 was concerned, the inspector reported:
328. There
appear to be no detailed objections to the inclusion of this site in the Green
Belt. The landscape and open spaces in the vicinity of Weston Big Wood appear
to me to be particularly sensitive and the exclusion of the site from the Green
Belt would, in my opinion, allow development to be taken too close to the wood.
The boundary for the Green Belt proposed by Grove Consultants, and I assume
supported by the Housebuilders Federation, seems to me to be much less
satisfactory for Green Belt purposes than that proposed by the Council.
329.
Accordingly I recommend that Site 5/3 be included in the Green Belt.
While it may
technically be correct that there were no detailed objections to the inclusion
of site 5/3 within the green belt, this seems to me to ignore Mr Tyler’s
objection which was part of his wider detailed objection based upon the
submission that the natural boundary was Weston Big Wood.
When it came
to Mr Tyler’s objection, the inspector seems, wrongly in my view, to have
treated it as confined to Mr Tyler’s own land. He reported:
572. The objection
site is in the centre of the peninsula of open land extending into Portishead
and terminating at Fore Hill. It is detached from the developed area of
Portishead and if it were to be excluded from the proposed Green Belt it would
create a ‘hole’ in it. An alternative would be to stop the Green Belt short of
the site and also to exclude Sites 5/3, 5/4, 5/5 and 5/8 together with the land
between the sites and Fore Hill.
573. I have
already recommended that these sites should be included in the Green Belt and I
do not consider that this objection gives me reason to reconsider my earlier
recommendation. Accordingly I recommend that the objection site also be
included in the Green Belt.
The ‘hole’
comment is factually correct only if sites 5/4 and 5/5 as well as site 5/3 are
to be included in the green belt. The inclusion of site 5/3 by itself would not
have this effect. The inclusion of Mr Tyler’s land within the green belt was
thus crucially dependent upon the inclusion of sites 5/4 and 5/5 about which the
inspector had said that he was not entirely convinced that it was necessary.
In this
somewhat unsatisfactory situation the council had to reach their own decision
taking account of the inspector’s report. The council’s decision was as
follows:
119.
Excluding the site from the Green Belt would conflict with the recommendations
that land adjacent to it (Sites 5/3, 5/4, 5/5, 5/8) should have Green Belt
designation and would have the effect of creating a hole in it. The Inspector
recommends that having recommended that Sites 5/3, 5/4, 5/5 and 5/8 be
included, the site also be included in the designated Green Belt.
That having
regard to the information placed before the Inquiry and the Inspector’s Report,
the Inspector’s recommendation for the land at Portishead be accepted and no
action be taken to modify the Plan.
When the
matter came before the learned deputy judge, Mr Tyler was originally
represented by counsel other than Mr Milner, but he dismissed him at some stage
during the hearing. All that was argued was the ultra vires point and a
submission that the council’s decision was Wednesbury unreasonable. The
latter submission has not been argued before us. The judge rightly dismissed
both submissions. The procedural complaint was never put forward and indeed
does not seem to feature in the notice of appeal, which was settled
by Mr Tyler personally. It was, however, fully argued before us without
substantial objection. It seems to me that since the facts are not in dispute
and the submission involves a pure point of law it is open to Mr Milner to make
it on behalf of Mr Tyler even at this late stage and that in all the
circumstances there would be no particular merit in requiring an amendment to
the notice of appeal.
The
requirements of section 12 of the Tribunals and Inquiries Act 1958, the
predecessor of the 1971 Act, were considered by Megaw J in Re Poyser and
Mills’ Arbitration [1964] QB 467, and at p 478 he said:
Parliament
provided that reasons shall be given, and in my view that must be read as meaning
that proper, adequate reasons must be given. The reasons that are set out must
be reasons which will not only be intelligible, but which deal with the
substantial points that have been raised.
This statement
was approved by Lord Scarman in Westminster City Council v Great
Portland Estates plc [1985] AC 661 at p 673.
I therefore
ask myself whether the inspector’s reasons and the council’s reasons, which in
substance merely amounted to an acceptance of the inspector’s reasons,
constituted reasons which dealt with the substantial points raised by Mr
Tyler’s objection. My conclusion is that they did not. Mr Tyler was contending
that the green belt boundary should run along the Portishead side of that part
of the area of Weston Big Wood which was the subject of the tree preservation
order, rather than as it has been drawn by the council, because this is a
natural boundary which would leave some land outside the green belt which
might, in some circumstances, be appropriately developed on grounds which would
not be justified in the case of green belt land. I am quite prepared to assume
that the council may have had good reasons for rejecting this objection, but
they have not given them. I also accept, as I think that Mr Milner was
constrained to accept, that the objections to the exclusion of site 5/3 were
‘site specific’ and sufficiently stated. But neither the inspector nor the
council seem to have given any, or any proper or intelligible, reason for
including sites 5/4, 5/5 and 5/8 within the green belt area or to have
explained why adequate protection for these sites could not have been achieved
by applying landscaping or other planning considerations to any application to
develop. On the contrary, the inspector and the council by the adoption of his
reasons say that they are not entirely convinced that inclusion in the green
belt is necessary. Yet it is the inclusion of these sites which is relied upon
as justifying the inclusion of Mr Tyler’s site on the grounds that to do
otherwise would create a hole.
I would quash
that part of the local plan which relates to that part of Mr Tyler’s land which
formed the subject of his objection and sites 5/4, 5/5 and 5/8, leaving it to
the council, if so advised, to confirm or amend their plan with proper reasons.
In doing so I would remind the council that, irrespective of specific or other
objections (see para 336 of the inspector’s report), it is their duty to
consider whether inclusion of any particular area within the green belt is
necessary in order to provide long-term protection of the nature contemplated
by GB6 and, if not convinced of this necessity, to refrain from including that
area within the boundaries of the green belt.
TAYLOR LJ: I agree.
SIR JOHN
MEGAW: I also agree.
Appeal
allowed. No order for costs of the appeal or in the court below.
