Bravebyte Ltd (t/a London Equestrian Centre), R (on the application of) v First Secretary Of State & Anor [2004] EWHC 1324 (Admin)

Case No CO/3608/2003[2004] EWHC 1324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 25th February 2004
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OFClaimantBRAVEBYTE LIMITEDClaimantt/a LONDON EQUESTRIAN CENTREClaimantFIRST SECRETARY OF STATEDefendantBARNET LONDON BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR KEVIN LEIGH (instructed by MESSRS MICHAEL SEGEN & COMPANY) appeared for CLAIMANTMR JONATHAN MOFFETT (instructed by TREASURY SOLICITORS) appeared for DEFENDANTS
J U D G M E N TWednesday, 25th February 2004
[1]MR JUSTICE SULLIVAN: This is an application under s.288 of the Town and Country Planning Act challenging the decision of 20th June 2003, refusing planning permission for the provision of an all-weather outdoor exercise yard. The exercise yard is part of the London Equestrian Centre at Lullington Garth in North Finchley that is operated and owned by the Claimant. The Centre comprises stables, an indoor menage, an exercise track and certain outdoor exercise areas. Planning permission was granted in 1998 for the regrading and reprofiling of an area of land adjacent to the indoor menage. The area was then laid down to grass.[2]It its application for planning permission, the Claimant explained that whilst it was believed at the outset that a grass surface would be sufficient, their experience had led them to conclude that an all-weather surface was "the only appropriate way to ensure that regular use will not degrade this part of the development".[3]The Statement submitted in support of the application explained that there was a need to provide for more outside training facilities, part of which would include a circuit of jumps fully to stretch the capabilities of both horses and riders.[4]The Council failed to determine the application. In due course it issued a Notice, setting out the reasons for which it would have refused planning permission had it been in time to do so. It was contended that the proposal development by reason of its size, design and materials would fail to maintain or enhance the character and visual amenity of the Green Belt and the Area of Special Character, contrary to a number of policies in the development plan.[5]The appeal was dealt with by way of written representations in respect of a site visit on 2nd June 2003. The written representations are fairly described as somewhat sparse. Regrettably, the Inspector was not given the help by the parties that he might reasonably have expected. The Council initially failed to send in any representations at all. The Claimant responded briefly to the questionnaire. The Council then sent in late representations which consisted of the would-be Reasons for Refusal Notice, together with the Officer's Report. The Claimant's advisers, GO Planning Consultants, then responded to the Council's representations. Their response contained a little more detail about the realisation that a grass surface would not be adequate. They said:
"The area the subject of the appeal was included in the consent for reprofiling (1998) as a raised and levelled area. Only when it was realised that the use of a turf surface was not sufficiently substantial was the request made to change it for something that would be 'all weather'. The fact is that continual use by ponies with shod hooves would turn the 'landing' and 'jumping off' areas into a quagmire and the facility would be unusable except by very experienced riders. As the business of the centre is largely based on training youngsters at all levels of competence it will be seen that without this modification the facility intended by the earlier consent could not fulfil its purpose."
[6]By the time the Inspector came to make his site visit on 2nd June the development had already been carried out. He therefore treated the proposal as being one for retrospective planning permission, as provided for by Section 73A(2)(a), as amended, of the Act. Having set out the reason for which the Council would have refused the planning permission, had it had the opportunity to do so, the Inspector identified the main issues as follows:
"I consider that there are two main issues in this appeal. The site is within the Metropolitan Green Belt and issue a) is whether the proposal amounts to inappropriate development in the Green Belt, and if so, whether there are any very special circumstances sufficient to overcome the presumption against such development. Issue b) is the effect of the proposal on the Area of Special Character."
[7]In respect of issue a), the Inspector's conclusion was:
"Although I recognise that the Council has granted planning permission for various developments at the Centre in recent years, on the basis of what I have read and seen, I do not consider that the Centre constitutes outdoor sport or recreation as meant by paragraph 3.4 of PPG2, neither does is preserve the openness of the Green Belt. It follows therefore that the development for which retrospective permission is sought is inappropriate."
[8]In paragraph 9 of the decision letter the Inspector said that he had additionally considered the effect of the artificial surface on the visual amenity of the Green Belt, in terms of paragraph 3.15 of PPG2.[9]He first of all dealt with the visual impact of the work that had been carried out as a result of the 1998 planning permission and said that that clearly had resulted in some visual impact.[10]He then dealt with the subject matter of the appeal, that is to say the surfacing of the outdoor exercise yard in these terms: "The surface can be seen, however, from the public footpath where is tuns close to the riding area on its north-west side, and from the adjacent yard, and would continue to be visible long after any screen planting had been implemented. From here, the artificial surface, which is alien to the open, natural character of the land to the north and east of the Equestrian Centre buildings, is in my view intrusive, and visually harmful.10. I consider therefore that the development is inappropriate in the context of policy O2 of the emerging UDP and PPG2, and is harmful to the visual amenity of the Green Belt. It therefore remains to consider whether there are any very special circumstances such that outweigh the presumption against such development.11. The external riding area has been provided as part of a programme of upgrading and improvement of the Centre. When developed as a grassed surfaced arena it was thought that this would suffice, but an all-weather surface is now considered the only appropriate way to ensure that regular use will not degrade this area ... With the appeal proposal, a beech hedge is proposed around the north and east sides, with two substantial blocks of additional planting between the riding area and Lullington Garth.12. I appreciate the reasons why this extension of all-weather facilities has been carried out as part of the development of the Centre, but there is no evidence that this is essential in terms of the future running of the establishment. With regard to the proposed planting, whilst the screen planting immediately around the external riding area would be helpful when it had fully matured, the proposed detached blocks of planting would be by way of general environmental improvement, and would be unrelated specifically to the screening of the hard surfacing. Neither factor in my judgment amounts to very special circumstances.13. I conclude therefore on issue a) that the proposal amounts to inappropriate development in the Green Belt for which there are no very special circumstances sufficient to outweigh the strong presumption against such development ... ".[11]The Inspector then dealt with the impact of the proposal on the Area of Special Character. He said, inter alia:
"I consider that the application of the artificial surface to the external riding area results in a significant difference in the appearance of the land compared with natural grass, and amounts to the encroachment of a hard, unsympathetic surface into this area of special landscape value. I consider that it materially harms its character. 15. I conclude on issue b) that the artificially surfaced external riding area results in material harm to the Area of Special Character. It therefore conflicts with UDP policies G3 and T1.1, and with policy GEnv4 of the emerging UDP. 16. I find against the proposal in relation to both main issues. I have taken into account all other matters raised in written representations, but none of these is of such significance as to outweigh the considerations which have led to my conclusions."
[12]In his submissions on behalf of the Claimant, Mr Leigh's first contention was that the Inspector had started off on the wrong foot by concluding that the development the subject of the appeal, which was an outdoor excise area, was inappropriate development within the Green Belt in terms of paragraph 3.4 of PPG2. Paragraph 3.4 is concerned with the construction of new buildings inside a Green Belt.[13]On behalf of the Secretary of State, Mr Moffett very properly conceded that the Inspector's reference to and reliance upon paragraph 3.4 of PPG2 was an error. He nevertheless submitted that the Inspector considered the visual impact upon the Green Belt in terms of paragraph 3.15 of PPG2 and, having done so, there could be "no doubt that his decision on the first issue would have been the same in any event." I am not persuaded that that is so. It seems to me that there is potentially a significant difference between development which is inappropriate in the Green Belt and development which, while not inappropriate in policy terms, nevertheless is injurious to the Green Belt in terms of visual amenity. It is plain from paragraph 3.1 of PPG2 that the mere fact that development is injurious to the visual amenities of the Green Belt is not a ground for concluding that it is inappropriate development. One may have appropriate development which is visually injurious to the Green Belt and visually injurious to the development which is not inappropriate in policy terms. Paragraph 3.1 expressly refers to paragraphs 3.4, 3.8, 3.11 and 3.12 as setting out the circumstances in which development is inappropriate in policy terms. It would be noted that paragraph 3.15 is not included in that list of references.[14]Is there any difference in practical terms? The answer must be "Yes". If development is inappropriate in the Green Belt in policy terms, then it has to be justified by very special circumstances. The Inspector correctly said in paragraph 13 that there was "a strong presumption" against such development. Whilst there is a presumption against development that is visually injurious to Green Belt or which conflicts with other development planning policies, the presumption against such development is less strong. In such cases one is looking at the normal balancing exercise required by section 54(a), that is to say that the appeal will be determined in accordance with the development plan unless material considerations indicate otherwise. Thus, although the Appellant whose proposal conflicts with the development plan policy has a hurdle to overcome, it is common ground that the hurdle is not so high as the hurdle posed by the requirement to demonstrate very special circumstances.[15]It is plain that in his consideration of the first issue, the Green Belt issue, the Inspector proceeded upon the basis of his initial conclusion that the appeal proposal was inappropriate development in the Green Belt. For that reason, he considered whether there were any very special circumstances which outweighed the strong presumption against such development. One can understand the reasoning in paragraph 12 of the decision letter, if what the Inspector was looking for was very special circumstances. The prospect of planting in a landscaping scheme could hardly be described as a very special circumstance. It might, on the other hand, be a sufficient mitigation of visual impact to justify the grant of planning permission contrary, for example, to a policy which sought to protect the appearance of an Area of Special Character.[16]So far as the reasons for wanting an all-weather surface rather than a grassed surface, paragraph 12 is perhaps less than clear. It would seem that the most likely interpretation of what the Inspector concluded was that he accepted for the reasons set out in paragraph 11 of the decision letter, the Appellant's contention that an all-weather surface was the only appropriate way to ensure that regular use of the outdoor exercise area would not degrade it. The Inspector said he appreciated all the reasons (put forward by the Appellant) why this extension of all-weather facilities has been carried out as part of the development of the Centre. Thus, he appears to have accepted that there was some need, at least, for the all-weather facilities, and that they did need some form of all-weather surface for the reasons given by the Appellant, but he was not persuaded that this was essential in the terms of the future running of the establishment.[17]Mr Moffett submits, entirely correctly, that there was indeed no evidence that the use of this outdoor exercise area was "essential" in terms of the future running of the Centre as a whole. However, it was not necessary for the Appellant to demonstrate that the use of the outdoor exercise area for which planning permission had been granted was "essential" in order possibly to overcome the policy objections based upon visual amenity grounds. The degree of need for the use of the outdoor exercise area which had been permitted would be a matter to be weighed against the extent of the visual harm as a result in the change of the surfacing. It has to be borne in mind that that is the only change with which the Inspector was concerned, since permission had been granted for the levelling of the area and its creation as an outdoor exercise area. One can understand that if what the Inspector was looking for was very special circumstances to justify an appropriate development in the Green Belt, he would have been entitled to pitch the test as high as:
"Is this essential in terms of the future running of the establishment as a whole?"
[18]For these reasons, it seems to me that the initial error in relation to paragraph 3.4 of PPG2 permeates the whole of the Inspector's approach to the first issue, the Green Belt issue.[19]Mr Moffett submitted that that, whilst regrettable, was of no consequence because if the decision letter was read as a whole, there were two independent reasons why the Inspector refused planning permission:(a) conflict with Green Belt policy, and(b) conflict with policies relating to the Area of Special Character.[20]I am not able to accept that submission. Reading the decision letter as a whole and in a common sense way, it is plain that the Inspector regarded issue a), the Green Belt issue, as the more important of the two. It is by no means clear from his reasoning that, had he simply been concerned with the visual impact of this proposal, whether upon the Green Belt or upon the Area of Special Character, he would have considered that that impact on its own justified a refusal of planning permission. Paragraph 16 of the decision letter does not suggest that the refusal of planning permission was justified on the basis of either of the two main issues looked at independently.[21]There is a further concern, in any event, in relation to the manner in which the Inspector dealt with the visual impact issue. In paragraph 14 he compared the appearance of the exercise area with "natural grass". Since he appears to have accepted the justification put forward for the Appellant for providing an all-weather surface, the proper comparison was between an all-weather surface and a grass surface where the landing and jumping areas would be turned into a quagmire in the winter and which would be far too hard in the summer. Moreover, it was an area which was not simply natural grass, it was an area on which jumps were to be provided.[22]I would accept that this last point would not have been sufficient on its own to justify quashing this decision letter, but it is perhaps a reflection of the difficulty that the Inspector clearly found in grappling with the issues, given that he had been provided with such limited assistance by the parties.[23]For these reasons, but principally for the first reason, that is to say the fact that the Inspector started off on the wrong foot in terms of Green Belt policy, this application must be allowed.[24]MR LEIGH: My Lord, I am very grateful. My Lord, that simply leaves the usual application for my costs. I am pleased to tell your Lordship that we have already agreed an amount prior to this afternoon and I can give your Lordship that amount very shortly. Both sides, of course, exchanged statements. Do you want to see the actual statements?

MR JUSTICE SULLIVAN: No, if you are agreed, just give me the actual figure.

[26]MR LEIGH: We agreed that the Secretary of State will, in the event, losing, as he has done, pay costs in the sum of £6,800. That is an agreed sum.

MR JUSTICE SULLIVAN: Does that include or exclude VAT? I never know.

[28]MR LEIGH: That is including VAT. My Lord, there is simply one matter. Out of an abundance of caution I raise it. I had always thought that if the order does not make it clear, the position was that the costs are payable forthwith. I raised this outside with the Treasury Solicitor, who seemed to think that in fact the normal order was, if you do not make an order, it is 21 days or 14 days.

MR JUSTICE SULLIVAN: I thought in the Rules that you get a certain period of time.

[30]MR MOFFETT: It is 14 days, my Lord. I can try and find it.[31]MR LEIGH: Is it 14 days?

MR JUSTICE SULLIVAN: I should think you will wait for them for 14 days.

[33]MR LEIGH: Yes, I am not suggesting it is forthwith. That was my point. We would like it forthwith but we do not want it forthwith. If it is not clear, we will have it in the usual way.

MR JUSTICE SULLIVAN: I cannot see any reason for making it in anything other than in the usual way.

[35]MR LEIGH: I raised it because at one time, if the Courts were silent on it -- maybe this was the County Court, not this Court.[36]MR JUSTICE SULLIVAN: I have never been asked to before. I have been making forthwith orders for about seven years if that is the case, Mr Leigh, and nobody has complained![37]MR LEIGH: We are not asking for it. I just wanted to be fair. We are very grateful for the way your Lordship dealt with it, of course, and thank you very much.

MR JUSTICE SULLIVAN: Mr Moffett, you confirm £6,800?

[39]MR MOFFETT: That is agreed, my Lord.[40]MR JUSTICE SULLIVAN: Then the application is allowed, decision quashed. The First Respondent is to pay the Appellant's costs. Those costs to be summarily assessed in the sum of £6,800 including VAT. No other applications?[41]MR MOFFETT: No, thank you.