Dacorum Borough Council, R (on the application of) v The First Secretary of State for Communities and Local Government & Ors [2009] EWCA Civ 1494

Case No C1/2009/0659 & 0660[2009] EWCA Civ 1494
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN’S BENCH DIVISION
(MR JUSTICE CRANSTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 22 nd October 2009
Before
LORD JUSTICE RIXLORD JUSTICE LLOYDSIR DAVID KEENE
Between
R (Dacorum Borough Council)AppellantThe First Secretary of State for Communities and Local Government & orsRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Paul Stinchcombe (instructed by DC Kaye & Co) appeared for Appellant.Mr Rory Clarke (instructed by Treasury Solicitors) appeared for Respondent.
JudgmentSir David Keene:
[1]This appeal concerns planning policies applicable in the borough of Dacorum to extensions of dwelling houses in the Green Belt. The appellants own a dwelling in the village of Chipperfield in Hertfordshire. It lies within the Metropolitan Green Belt and within the borough of Dacorum. The dwelling was built under a planning permission granted in 1999 to replace an older dwelling known as The Thatch, albeit somewhat further back from the road frontage. At some time thereafter, the appellants built three structures related to the replacement dwelling, those being a conservatory, a shed and a car port. This appeal is only concerned with the first of those. No planning permission had been obtained for this new development and permission was required because a condition on the 1999 permission removed permitted development rights. The appellants applied retrospectively for planning permission but permission was refused by the planning authority and their appeal was dismissed by a planning inspector in July of 2007. On 4 January 2008 the planning authority served an enforcement notice requiring inter alia the removal of the conservatory. The appellants appealed under section 174 of the Town and Country Planning Act 1990 (the 1990 Act) on grounds (a) and (f) of section 174(2). Ground (a) is the only one relevant for present purposes.[2]It raised, of course, the planning merits of the development and this time the appellants succeeded. By a decision letter dated 6 June 2008 another planning inspector held that the conservatory came within the scope of a policy in the Local Plan, policy 22, which dealt with extensions to dwellings in the Green Belt. He granted planning permission for it and modified the enforcement notice accordingly. The Local Planning authority challenged his decision in the High Court. The Secretary of State for Communities and Local Government, on whose behalf the inspector had issued his decision, consented to judgment, but the present appellants resisted that challenge. In that, however, they were unsuccessful. Cranston J held that the inspector had been wrong to conclude that the conservatory complied with policy 22 of the Local Plan and that he must have left out of consideration the explanatory text to that policy. The judge was also critical of the inspector’s interpretation of the relevant passages in the National Policy Guidance on Green Belts, a planning policy guidance note number 2 usually referred to in brief as “PPG2”.[3]The issue in the case can be seen from those policies in PPG2 and in the statutory development plan, which includes the Dacorum Borough Local Plan adopted in 2004. PPG2 states at paragraph 3.4 that:
“The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes: [there then follow a number of subparagraphs, the third of which reads]: -- limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below)”
Paragraph 3.6 provides: “Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach Local Planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable.”

[there then follow a number of subparagraphs, the third of which reads]:

[4]I point out that the word “original” in the first sentence in that passage is italicised, presumably for emphasis. Policy 22 in the statutory Local Plan deals specifically with extensions to dwellings in the Green Belt and the rural area. The relevant part of that policy reads as follows:
“In the Green Belt and in the Rural Area the extension of existing dwellings will not be permitted unless: …….. (e) the extension is limited in size. Criterion (e) will be judged according to (i) the appropriate degree of restraint in the Green Belt (Policy 4) or Rural Area (Policy 7), taking into account the size of the original dwelling: within the Green Belt the resulting building (including any earlier extensions and alterations or replacement) should be less than 130% of the floor area of the original dwelling.”
There then follows a somewhat more generous percentage for extensions in the non-Green Belt rural area.

Criterion (e) will be judged according to

(e) will be judged according to

[5]The critical test for present purposes thus is that the resulting building should be less than 130% of the floor area of the original dwelling, whatever that may mean. The explanatory text to this policy then states:
“22.2 The original dwelling house means: • either the dwelling that existed on the site on 1 July 1948; or • if there was no dwelling on that site at that time, the first dwelling built after that date, as it existed when first built. 22.3 The policy therefore takes into account the aggregate size and cumulative impact of extensions on the openness of the Green Belt and the Rural Area, whether the current dwelling is the original dwelling on the site or not.”
[6]The relevant figures in the present case are not in dispute. The dwelling called The Thatch -- demolished, it seems, in the late 1990s -- had had a floor area of 90 square metres. The replacement dwelling erected thereafter has a floor area of 145 square metres. With the conservatory added it becomes 157 square metres. If that resulting figure of 157 square metres is compared to the floor area of the replacement dwelling it complies with policy 22, because the extension represents just over 108% of that replacement dwelling, well within the 130% specified in the policy. Indeed, on that approach an extension of up to almost 44 square metres would be permissible -- interestingly, almost half the floor area of The Thatch. If, however, the resulting building is compared to the 90 square metres of The Thatch, it is clearly in breach of policy 22 because it represents, as the first inspector noted, 174% of that dwelling. The issue was, and is, what is meant by the word “original” in the phrase “original dwelling” in the Local Plan policy 22. Is it the replacement dwelling or is it The Thatch?[7]The reasoning of the inspector, who found in the appellants’ favour, was broadly this: he began by determining the meaning of the word “original” in paragraph 3.6 of PPG2 because he regarded that as “pivotal to my determination on planning merits”. The reason for attaching such significance to the meaning of that word in PPG2, paragraph 3.6 is made clear by the final sentence of his paragraph 5, which reads:
“I shall assume for the present purpose that the council’s reference to the ‘original dwelling’ in policy 22 has the same meaning as the reference to the ‘original building’ in paragraph 3.6 of PPG2.”
[8]The inspector then went on to refer to two decisions by deputy High Court judges, Brentwood Borough Council v Secretary of State and Churley unreported CO1220/99, decided on 17 September 1999; and Ascot Wood Ltd v Secretary of State for the Environment and Ascot Wood Ltd v Secretary of State for the Environment and Runnymede Borough Council [2000] JPL 844. He regarded those, and in particular the former, as establishing that the word “original” in PPG2 referred to an existing building including a replacement of an earlier building and not to the earlier building itself. Thus policy 22 in the Dacorum Borough Local Plan was to be interpreted as allowing an extension of up to 130% on the dwelling now existing on the appeal site. There was no reference by the inspector, at any rate in express terms, to the supporting text of policy 22 in the statutory Local Plan, which I have set out earlier in this judgment.[9]Cranston J did not regard the two decisions referred to by the inspector as establishing in any clear way that the word “original” in PPG2 referred to an existing building which had replaced an earlier one. The judge contrasted the use of the word “existing” in paragraph 3.4 of that PPG with the use of the word “original” in paragraph 3.6, noting that the drafter of paragraph 3.6 had gone out of his way to emphasise the difference by italicising the word “original”. But in any event, he said, the inspector in the present case must have left out of consideration the explanatory text of policy 22 in the Local Plan, the “plain words” of which were contrary to the inspector’s interpretation of that policy. The judge added that in his view it was wrong to say that policy 22 had the same meaning as the words in paragraph 3.6 of PPG2. He acknowledged that he should not intervene if the words in the Local Plan policy were capable of bearing the meaning adopted by the inspector (see R v Derbyshire County Council ex parte Woods [1997] JPL 958), but Cranston J concluded both that the inspector had left out of account a material consideration in the shape of the explanatory text to policy 22 and had adopted an incorrect interpretation of the words “original dwelling” in that policy. Consequently, he quashed the inspector’s decision.[10]The appellants argue that he was wrong to do so. On their behalf Mr Stinchcombe submits that as a matter of law a Local Plan policy such as policy 22 cannot adopt a different meaning of the words “original dwelling” or “original building” from that employed in national policy guidance on the same topic such as PPG2. Thus, however clear may be the wording of policy 22 and its explanatory text in the Local Plan, precedence has to be given to PPG2, and the inspector here was right to adopt the meaning of those words in paragraph 3.6 of PPG2. For those propositions Mr Stinchcombe relies on a comment by Mr Nigel McLeod QC, the deputy judge in the Ascot Wood case, there dealing, it must be said, with words in a draft Local Plan rather than an adopted one, Mr McLeod referred to PPG2 and commented in one sentence that counsel:
“…also makes the point, with which I agree if he is right, that the last sentence of paragraph 3.6 does not allow rewriting of the concepts in 3.6 by referring to a previous building as opposed to an existing building.”
[11]The appellants also pray in aid the decision of this court in R (Heath & Hampstead Society) v Camden London Borough Council [2008] 2 P&CR 13, where the development plan used the words “appropriate development” which encompassed “limited extensions” to buildings on Metropolitan Open Space. It was agreed in that case that these words were to be interpreted by reference to paragraph 3.6 of PPG2 and that a national policy document like that should be given a consistent interpretation across the country (see paragraph 11). One notes in passing that there was no issue therefore for the court to decide in that case on this particular aspect. Thus it is now submitted that, whatever the meaning of “original” in paragraph 3.6 of PPG2, it has to take precedence over the wording in the Dacorum Local Plan. Mr Stinchcombe says that a Local Planning authority is entitled to prescribe what percentage increase is appropriate by way of an extension, but it cannot rewrite the concept of original building.[12]From there he goes on to argue that paragraph 3.6 of PPG2 is not ambiguous. He relies on the General Permitted Development Order 1995 with its definition of “original building” and contends that the words in paragraph 3.6 refer to an unextended building on site, even if that is a replacement building. In addition, it is submitted that the inspector was entitled to construe policy 22, even by itself, as referring to the replacement building. Reliance for that proposition is placed on the Brentwood v Churley case for an implied additional proposition to be inserted in policy 22, that would allow in a replacement building as part of the concept of original dwellinghouse.[13]For my part, I am in no doubt that the starting point for any consideration of the issues in this appeal has to be the policy in the Local Plan. That plan is part of the statutory development plan. As such, it has the importance derived from what was section 54A of the 1990 Act, now section 38(6) of the Planning and Compulsory Purchase Act 2004, by which the determination:
“…must be made in accordance with the plan unless material considerations indicate otherwise.”
Thus policy 22 in the Local Plan for this area specifies that in the Green Belt the resulting building -- that is to say, the building which results from the extension in question -- should be less than 130% of the floor area of the original dwelling. What is meant by “the original dwelling” is, to my mind, clear from the words of the policy itself. One compares the floor space of the resulting building, “including any earlier extensions and alterations or replacement”, with the original building’s floor space. That phraseology itself, within the body of the policy, contrasts replacement with original dwelling. But the meaning is put beyond any doubt by paragraphs 22.2 and 22.3 of the explanatory text, which I have set out earlier. The phrase “the original dwellinghouse” means the dwelling existing on 1 July 1948, or, if there was not one that existed then, the first dwelling built thereafter “as it existed when first built”.[14]So if the first house was built in the early 1950s and was then replaced in the 1980s the exercise is to be carried out for any subsequent extensionby reference to floor space in the 1950s house, not the replacement dwelling. That approach is again spelt out in paragraph 22.3 by the use of those words:
“whether the current dwelling is the original dwelling on the site or not”
. In other words the original dwelling may not be the current dwelling, the existing dwelling. To my mind, nothing could be clearer than the policy to be found in the statutory Local Plan, as indeed the inspector who conducted the earlier public inquiry in 2007 appears to have decided. He was right. The Brentwood v Churley case does not affect that (Brentwood Borough Council v Secretary of State for the Environment, Transport and the Regions and Churley CO/1220/99). Even if that decision is right, it was dealing with a different Local Plan which contained a different definition of “original” floor space.[15]This construction which I have set out is not undermined by PPG2. It has to be borne in mind that PPG2 is national guidance which is necessarily somewhat general in nature. Unsurprisingly, it leaves some flexibility to Local Planning authorities in how they apply the broader policies of the Secretary of State to their own area in the Local Plan process. Some Green Belts, and indeed some parts of Green Belts, are under greater development pressure than others.[16]One can see a recognition of that in the very paragraph to which so much reference has been made, paragraph 3.6, the final sentence of which states:
“Development Plans should make clear the approach Local Planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable.”
The first part of that sentence is not confined to cases involving proposed replacement of existing dwellings but relates to extensions and alterations as well. It is for the development plan therefore to spell out the detailed policies as to the scale of permissible extensions. The flexibility accorded to the development plan is again emphasised by the last part of the sentence which I have quoted, through the use of the words “if any”. In other words a Local Plan could provide that there are no circumstances in which replacement dwellings are acceptable in the Green Belt within its area, despite the earlier general policy in the previous sentence to that paragraph, which is somewhat more generous by allowing replacement dwellings not materially larger than the dwelling replaced.[17]As for the proposition that, as a matter of law, plain words in an adopted Local Plan are to be overridden or set aside by wording in a planning policy guidance note, I have to say that I regard that as not only misconceived but quite astonishing. Unlike a PPG, a Local Plan will have gone through the necessary statutory processes, including public consultation and normally a public inquiry, and a report by an independent inspector, before being formally and ultimately adopted. It has statutory force, being explicitly referred to in the legislation. The Secretary of State will have had the opportunity to change it if he regards it as failing to conform with national policy (see sections 43, 44 and 45 of the 1990 Act).[18]PPG2, by contrast, is not a document which has any statutory force, albeit that it will be a material consideration. Such guidance notes do not expressly feature in the relevant Acts, will not have been through a public inquiry process, and simply cannot take precedence over clear language in the statutory development plan. They may, of course, assist if the statutory development plan uses words which are not precisely defined, and that was the situation in the Heath and Hampsteadcase. It is not the situation here. I do not read the deputy judge in the Ascot Wood case as holding that an adopted Local Plan could not depart from the guidance in PPG2 because it was not being argued in that case that the adopted Local Plan did so. His was a passing comment and should not be regarded as of significance. But, in any event, such a proposition, were it to be culled from that case, would in my view be wrong in law.[19]Consequently, the inspector in the present case erred in making the assumption that the words “original dwelling” in policy 22 of the Local Plan had the same meaning as the words “original building” in paragraph 3.6 of PPG2, whatever that meaning might be. They might or they might not have the same meaning, but their proper interpretation is to be found in the Local Plan. There was and is no need to resort to PPG2 to ascertain the meaning. I recognise that the wording of paragraph 3.6 of the guidance note is not as clear as that in the Local Plan and, as the deputy judge in the Ascot Wood case acknowledged, there is a degree of ambiguity in the wording of paragraph 3.6 of PPG2. It should, however, be emphasised that the deputy judge in the Brentwood case did not decide that in that paragraph “original building” meant a replacement building as opposed to the earlier and now replaced building. In paragraph 3.6 of that judgment he indicated that it might be a matter of doubt whether “original building” meant the building as replaced or refer back to some pre-existing building, but he said in terms:
“I do not, however, investigate that matter further.”
His decision, as Cranston J rightly observed, turned on the wording of the relevant policy in the Brentwood Local Plan, a policy which was not on the same terms as policy 22 in the Dacorum Borough Local Plan. The Brentwood case thus provides no guidance for present purposes. Moreover, in my view it is unnecessary for this court to attempt a definitive interpretation of paragraph 3.6 of PPG2 for the reasons which I have already indicated.[20]I have therefore concluded that Cranston J was right to quash the inspector’s decision. The inspector cannot have taken the explanatory text to policy 22 of the Local Plan into account because his decision flies in the face of that text. He therefore left a material consideration out of account and so erred in law. Moreover, his interpretation of policy 22 is one which that policy, read with the explanatory text, is quite incapable of bearing. For those reasons I would dismiss this appeal.

Lord Justice Lloyd:

[21]I agree that the appeal should be dismissed for the reasons given by my Lord.

Lord Justice Rix:

[22]I also agree. I would accept that, where the interpretation of a Local Plan on its own language is uncertain, it may be that assistance in its interpretation may be obtained from the clear meaning of national guidance, such as is found in PPG2. In this case, however, the meaning of the Local Plan was clear in the way described by my Lord, even upon the assumption that paragraph 3.6 of PPG2 meant what the inspector took it to mean and what Mr Stinchcombe submitted that it did mean. I would merely emphasise, as my Lord has observed, that, so far from the guidance in PPG2 overriding the clear words of an adopted Local Plan with its statutory underpinnings, the latitude which PPG2 in this context allows the Local Plan is underlined by the final sentence of paragraph 3.6 which, it will be recalled, reads:
“Development Plans should make clear the approach Local Planning authorities will take, including the circumstances(if any)under which replacement dwellings areacceptable.”

Order

Appeal dismissed

Cited in 1 later judgment