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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Taylor Wimpey (South West Thames) Ltd v Secretary of State for Communities and Local Government & Anor [2011] EWHC 2090 (Admin) (25 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2090.html Cite as: [2011] EWHC 2090 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In THE MATTER OF AN APPLICATION UNDER S. 288 OF THE TOWN AND COUNTRY PLANNING ACT 1990
Strand, London, WC2A 2LL |
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B e f o r e :
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Taylor Wimpey (South West Thames) Limited |
Claimant |
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- and - |
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Secretary of State for Communities and Local Government Elmbridge Borough Council |
Defendants |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr David Forsdick (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant was not represented
Hearing date: 18 July 2011 followed by post-hearing written submissions
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Crown Copyright ©
HH Judge Anthony Thornton QC:
Introduction
Factual background to Taylor Wimpey's present application
"Nevertheless, I do not believe that in its present state, the land within the inner security fence fulfils any of the purposes of the green belt. Manifestly, it is not open countryside. It is substantially covered by buildings and seems to me to be part of the urban area of Hinchley Wood which it adjoins on two sides. It is used for Government business and will continue to be so used for the foreseeable future. If that use should cease, there would be a cogent case for permitting development that would not normally be acceptable in a green belt. The most likely alternative would be that this substantial site at the edge of a large residential area would fall into dereliction and decay. In my view that would be a most regrettable outcome."
The nature and content of the development
"It has been concluded that subject to conditions and obligations to limit the scope and impact of the replacement development, it would not in principle result in any harm that would justify refusal in the public interest and may be permitted as an exception to the normal policy against new building in the Green belt."
The outline permission also stated, as a reason for the imposition of limitations on the number and size of the houses to be provided, that these houses were intended to provide a development that made full and effective use of the land in keeping with the character of the surrounding area and the open appearance of the green belt and to make adequate provision for small dwellings in accordance with prevailing Elmbridge policies.
"The application is for a satisfactorily designed amended development of 134 (amended from 135) dwelling houses and flats and a community centre (1,120 sqm), which will not create significant adverse effects on any neighbouring property or on the character of the area given its size, scale, design and location."
"Amendments to planning approval 2008/2205 to allow for the provision of dormer window and/or velux roof lights to 41 dwellings and 11 additional flats within the roof space of the approved apartment blocks together with the re-siting of plots 93 & 94 and a reduction to the size of Block J."
The application also stated that the building and change of use work had already started but had not been completed, this being work to planning approval 2008/2205 that had started on 1 May 2009. The site was described as being "currently vacant" and its last use as being "under construction". The application described the site area as being 4.9 hectares and this was depicted with a black line on the accompanying site layout plan. This was the site covered by planning approval 2008/2205. The development that was proposed was stated to involve the gain of residential units and that the total proposed number of residential units would be 98. These were shown within a boundary depicted by a red line, being those units within the site as a whole that were affected by the amendments comprising the proposed development.
"(Amendments to planning permission 2008/2205 for 134 houses and flats)."
The covering letter did, however, describe the application as a "Full Application".
"The application … effectively seeks amendments to an existing detailed planning permission (2008/2205) for 134 dwellings on the site of the former Government Buildings at Hinchley Wood … so as to deliver 11 additional flats (including 4 more affordable housing units) without any increase to the height or footprint of the Approved Scheme and without any material alterations to its volume or design."
Green Belt Development
"Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
(1) The starting point for a decision-maker when considering an application to grant planning permission for inappropriate development in the green belt must be that the applied for development is harmful. This presumed harm is usually referred to as definitional harm.
(2) The decision-maker must first identify all other harm that would arise from the proposed development, all its claimed advantages and all other relevant circumstances that should be taken into account when deciding the application.
(3) The decision-maker must then balance the so-called definitional harm and all other harm arising from the development against the benefits and all other relevant circumstances.
(4) In reaching that decision, the decision-maker should take account of the site's relevant planning history. That history should include a previous lack of green belt objections and any relevant previous finding that were very special circumstances that permitted a grant of planning permission for that or a directly comparable development.
(5) Permission should only be granted if the development would, on balance, be beneficial and there are very special circumstances which clearly outweigh the harm and which justify what is, by definition, inappropriate development.
The relevant planning decisions
"46. Outline planning permission and subsequent reserved matters approval was granted for 134 dwellings on the site of which 41 were to be affordable housing units. The current application to utilise roof space for additional accommodation would result in an increase of 11 units. In line with policy requirements, 4 of these units are to be affordable housing. …
55. It is concluded that the development proposed represents inappropriate development within the green belt and is, by definition, harmful to the green belt. However outline planning permission has been granted and also approval of reserved matters ….. relating to the outline permission. This approved scheme is currently being implemented. It was previously acknowledged that this is an exceptional site … In line with government advice, it was concluded that in principle a redevelopment with housing and community facilities could offer the opportunity for environmental improvement without adding to the impact on the openness of the green belt and the purposes of including land within it. …
57. The significant harm to the openness of the green belt, previously identified in the [previous appeal scheme arising from the 2008 full planning application] as a result of increase in height and bulk would not occur in this current scheme compared with that already approved [in the 2004 outline approval taken with the 2008 reserved matters approval]. In the absence of any identified harm to the openness of the green belt, it is considered that the provision of additional housing that the [2009 appeal inspector] identified as an important factor in the appeal scheme outweighs the identified harm to the green belt by virtue of the inappropriateness of development. As such, very special circumstances, on balance, are considered to be of sufficient weight to justify the grant of planning permission and the aims to protect the green belt as set out in Government Guidance PPG2 would be met and that the harm, by reason of inappropriateness is, in this case, outweighed by other material considerations."
(1) The application was for a development that consisted of amendments to the reserved matters approval which was already being implemented;
(2) That development was, by definition harmful;
(3) The development that these amendments related to had previously been approved because its advantages outweighed that approved scheme's definitional harm;
(4) There were very special circumstances which justified the original approval despite the development being undertaken in the green belt,
(5) No significant harm was provided by the development proposal and it had advantages that outweighed its definitional harm including the important advantage that the proposal would produce increased housing.
(6) Overall, the advantages of the proposal and the very special circumstances present justified approval.
"1. The amended development by virtue of the number of additional dormer windows and roof lights would have a greater impact on the openness of this sensitive green belt location. In addition, the extra storeys created would result in larger houses with insufficient garden space. The additional flats within the roof space would only be served by roof lights which would not provide a good standard of accommodation ("….")
2. The application does not propose to make any payments for infrastructure and service contributions in accordance with the Council's Planning Obligations and Infrastructure Provision Supplementary Planning Document …".
The second ground of refusal is no longer relevant because Taylor Wimpey have put forward appropriate proposals for the making of such payments.
"1.2 The application … effectively seeks amendments to an existing detailed planning permission for 134 dwellings on the site … so as to deliver 11 additional flats (including 4 more affordable housing units) without any increase to the height or footprint of the Approved Scheme and without any material alterations to its volume or design. …
4.2.11 … it is very significant that permission has already been granted for development on this site for 134 dwellings, a permission whose implementation is already underway. The development of the Approved Scheme in this green belt location has been found to be, and must continue to be treated as, perfectly justifiable under PPG2. This is because of the very special circumstances under which the benefits of the scheme in terms of housing (and affordable housing) provision, the provision of community facilities and open space, and the re-use of a previously developed but now empty site that might otherwise remain in use) outweigh any harmful impact which the Approved Scheme may have on the site.
4.2.12 It follows that any proposal which, as a minimum, offers the benefits afforded by the Approved Scheme, without any material increase in the impact of the development on the Green Belt, must be justifiable under PPG2. Equally, any proposal which offers greater benefits than the Approved Scheme must be justifiable under PPG2 so long as those greater benefits outweigh any additional harm to the Green Belt that my result. To reject a proposal of either such kind would, against the backdrop of the Approved Scheme, be irrational and wholly inappropriate."
"5.1.1 Under the hearings procedure, the Inspector holds a public hearing with the main parties. … The hearing is an inquisitorial process led by the Inspector who identifies the issues for discussion based on the evidence submitted and any representations made. … ."[6]
(1) Whether the proposal would be inappropriate development in the green belt having regard to PPG 2;
(2) The effect of the proposal on the openness of the Green Belt, the character and appearance of the surrounding area and the visual amenities of the green belt;
(3) Whether the living conditions for future occupiers would be satisfactory having regard to the provision of garden space and the internal environment; and
(4) If the proposal would be inappropriate development in the green belt whether the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development.
"5. As described above, the proposal would increase the total units to 145. The 11 additional flats would be lit by roof lights. In addition, 41 of the houses would also have further accommodation in the roof space. These would all have roof lights and, in addition, 20 of the houses would have dormers. A minor adjustment to the layout in respect of Block J and Plots 93 and 94 is also required to facilitate a sewer easement. Other than that, the eaves, ridge height and footprint of the buildings would be the same as the approved scheme. The appeal site relates solely to the blocks and plots where changes are intended. Both parties agreed that the proposal comprises these extra works only and I shall deal with the appeal on that basis." (emphasis added)
"Final balancing and Conclusion31. I find that the effect of the proposal on the openness of the green belt would be neutral and that there would be no harm to the character and appearance of the area or the visual amenities of the green belt. Furthermore, the living conditions for future occupiers would be satisfactory having regard to the provision of garden space and the internal environment. The proposal would not be contrary to any of the development plan policies cited.
32. However, the proposal would be inappropriate development in the green belt. PPG 2 prescribes that substantial weight should be given to the harm by reason of inappropriateness. Most of the other considerations that I have referred to are inconsequential. However, significant weight is attached to the additional housing that would be provided and particularly affordable housing. In the final balance, the amount of weight in support cannot be said to clearly outweigh the harm by definition. As a result, the very special circumstances necessary to justify the development do not exist. So, for the reasons given, my final conclusion is that the appeal should not succeed."
The parties' submissions
The nature of the proposed development
"(1) On the application made to a local planning authority, the planning permission which may be granted includes permission for development carried out before the date of the application.
(2) Subsection (1) applies to development carried out -
……….
(c) without complying with some condition subject to which planning permission was granted."
The application that Taylor Wimpey submitted was stated to relate to the entire development site and to be an amendment to the permitted development which had already started. Its effect, therefore, was to seek permission to complete the permitted development in an amended form without complying with all of the restrictions originally imposed that had related to the number and layout of dwellings or with the obligation for strict compliance with many of the originally approved drawings.
(1) There is no specified form on which an application under section 73A should be made and the application does not have to state that it is made under that section. The application must comply with paragraph 4E(4) of the General Development Procedure Order that requires the application to identify the previous grant of planning permission and the conditions which the applicant seeks should no longer apply. This requirement was complied with by the submission of amended plans relating to the affected dwellings and in the accompanying documents which, taken together, identified the previous permission and the ways in which its conditions were not to be complied with.
(2) The red line drawn on the layout plan accompanying the application was clearly identifying the dwellings affected by the proposed variations rather than all those subject to the application as a whole. The limits of the proposed development were shown by a different black line and this confirmed that the application related to the entire development and to proposed additions and changes to that development.
(3) The application clearly identified itself as being one that was seeking variations to the permitted development in its entirety and as proposing a development of the entire site comprising the approved development with a number of additions and variations.
Very special circumstances
Note 1 Executed in the form of a deed dated 21 April 2006 by the applicant, Trillium (Prime) Property GP Limited, who was the then-owner of the site and made in favour of both Elmbridge and Surrey County Council pursuant to section 106 of the Town and Country Planning Act 1990. [Back] Note 2 Inappropriate development is defined by paragraph 3.4 of the applicable Guidance, Planning Policy Guidance 2: Green Belts (1992) which also defines limited exceptions which may be considered to constitute appropriate development. Taylor Wimpey’s application was, by this definition inappropriate development since it related to new buildings which were not covered by the exceptions. [Back] Note 3 First published in January 1995 and amended in March 2001. [Back] Note 4 PPS3 – first published in 2006. [Back] Note 5 This summary of the relevant parts of the policy guidance contained in PPS3 is derived from paragraphs 10, 45, 50, 68 and 69 of that statement of policy (and subsequently amended). [Back] Note 6 In the publication Procedural Guidance: Planning appeals and called-in planning applications (Pins 01/2009) issued by the Planning Inspectorate. [Back]