De Mulder & Anor v First Secretary of State & Anor [2005] EWHC 2640 (Admin)

[2005] EWHC 2640 (Admin)Case No CO/2279/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice,, Strand, London WC2A 2LLDate 28 November 2005
Before
MR. JUSTICE CRANE
Between
MR J DE MULDERClaimantMRS J DE MULDERClaimantTHE FIRST SECRETARY OF STATEDefendantSOLIHULL METROPOLITAN BOROUGH COUNCILDefendant
Mr.Harry Wolton QC and Mr.Robin Green (instructed by Hallmarks Solicitors) appeared for Claimants.Mr.James Strachan (instructed by the Treasury Solicitor) appeared for First Defendant. for The Second Defendants did not appear and were not represented.
JUDGMENT
[1]This is an application under the Town and Country Planning Act 1990, section 288, challenging the decision of the First Defendant in a letter dated 1 March 2005. The First Defendant, having called in an application for planning permission under section 77, dismissed the application. In doing so he disagreed with the recommendation of the Inspector appointed to hold an Inquiry.[2]The application was for planning permission for the redevelopment of the site to provide four detached dwellings. The site consists of 0.45 hectares of land on Becks Lane, near Meriden in the West Midlands, and is at present occupied by a scrapyard. The scrapyard has the benefit of a Certificate of Lawfulness of Existing Use or Development (“CLEUD”).[3]At present the site is not used to its full capacity. However, the Inspector concluded and the First Defendant agreed that there is a real prospect of the site being leased or sold for more extensive use, subject to the Waste Management Licensing (“WML”) Regulations 1994. The information provided to the Inspector was that effect of the CLEUD, the WML Regulations and the End of Life Vehicle Regulations is that the scrapyard is capable of storing up to 1000 vehicles or other scrap piled up to 5 metres high and dismantling up to 40 vehicles a week. She considered that even if planning permission is required to meet the WML Regulations, it is extremely unlikely that any necessary permission would be withheld. The Inspector concluded on the valuation evidence that a scale of development for dwellings smaller than the four dwellings proposed would not be economically attractive and therefore is unlikely to take place.[4]Thus it is common ground that a comparison has had to be made between the proposed development and the fall back use.[5]The site lies in the West Midlands Green Belt. It is located in the open countryside and is bounded on three sides by farmland. The Inspector went on to describe the surrounding landscape as “characterised by gently undulating fields with wooded hilltops, narrow winding lanes and thick roadside hedgerows which restrict views. Scattered buildings or groups of farm buildings nestle unobtrusively into the landscape and are generally well screened by hedges and trees. The area has a tranquil character and a sense of remoteness and enclosure”.[6]National policy on Green Belts is contained in PPG2. The most relevant parts are these: “Introduction ... Intentions of policy 1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development ... Purposes of including land in Green Belts Intentions of policy Purposes of including land in Green Belts 1.5 There are five purposes of including land in Green Belts: - to check the unrestricted sprawl of large built-up areas; - to prevent neighbouring towns from merging into one another; - to assist in safeguarding the countryside from encroachment; - to preserve the setting and special character of historic towns; and - to assist in urban regeneration by encouraging the recycling of derelict and other urban land ... ... Control over development Presumption against inappropriate development3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.3.2 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” (my underlining).

Purposes of including land in Green Belts

[7]Paragraph 3.4 states that the construction of new buildings inside a Green Belt is inappropriate unless it is for certain purposes, none of which are relevant here. Paragraph 3.8 deals with the re-use of existing buildings and 3.11 deals with mineral extraction. Paragraph 3.15 states “Visual amenity The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design.”[8]The development plan for the area includes the Solihull Unitary Development Plan, which provides for treatment of the Green Belt in a similar way to national policy. The local policy for the area includes the maintaining of its rural character and remoteness, as part of “Ancient Arden”.[9]In calling in the application for decision, the Secretary of State particularly wished to be informed, for the purpose of considering the application, about the extent to which the proposals are consistent with national planning policies in PPG2, in particular “(i) paragraph 3.4 about the construction of new buildings inside a Green Belt; (ii) if the proposals would result in inappropriate development in the Green Belt whether very special circumstances exist which outweighs the harm by reason of inappropriateness and any other harm; (iii) the impact of the proposals on visual amenity, with regard to paragraph 3.15 of PPG2.”[10]The Council, the Second Defendants, supported the application and had resolved to grant planning permission. The only objectors appearing before the Inspector were the Campaign to Protect Rural England, whose case concentrated on the number of dwellings proposed. In written representations the local parish council submitted an objection to the proposal, while several local residents supported it.[11]It is accepted that the proposed development is not for one of the purposes set out in paragraph 3.4 of PPG2 and is therefore inappropriate development in the Green Belt. Such inappropriate development is by definition harmful to the Green Belt.[12]The Secretary of State considered that the removal of the dilapidated buildings and fencing and the addition of sensitive landscaping would be an improvement to the visual amenity of the Green Belt. He agreed with the Inspector’s conclusion that the fully operational scrapyard would be more harmful to the visual amenity of the Green Belt than the proposed development.[13]The Secretary of State agreed with the Inspector that a fully operational use of the site as a scrapyard would lead to a reduction in highway safety. He accepted that the proposed development would also lead to an increase in traffic but he agreed with the Inspector that in contrast a fully operational scrapyard would be more harmful to highway safety than the proposed development.[14]The Secretary of State differed from the Inspector about openness.[15]The Inspector accepted that the footprint and the volume of the four dwellings would be significantly less than in the earlier schemes for six dwellings. She considered that the low density and modest form of the proposal would mitigate its impact on openness. However, it would not “maintain” openness in the Green Belt (clearly using the phrase to compare the proposed development with an empty site). The Secretary of State agreed.[16]Comparing the proposed development with the fallback use, the Inspector said (in paragraph 97): “The proposed built development would cover only 651.86 square metres. To my mind this would be considerably less than the area of the site that would be covered by buildings, storage and other structures if the site were used to its full potential as a scrapyard. I have concluded that the loose knit layout and low key design of the proposal would blend sensitively with the character and appearance of the area. In contrast, intensive use as a scrapyard would be visually obtrusive and incongruous in this rural area. In these circumstances I consider that a fully operational scrapyard would be significantly more harmful to Green Belt openness and to the visual amenity of the Green Belt than the proposed development”.[17]The Secretary of State, however, said:
“24. The Secretary of State accepts that the footprint of the proposed development would cover an area which would be less than the area of the site that would be covered by buildings, storage and other structures if the site were used to its full potential as a scrapyard (IR97). However, in regard to volume of the dwellings the Secretary of State has also considered that the ridge height of the dwellings would be higher than the allowed 5 metres for stacked cars. He also considered that the permanence of the dwellings when compared to the stacked vehicles of the fallback position, weighs against the proposed development. For these reasons the Secretary of State disagrees with the Inspector that the fully operational scrapyard would be more harmful to the openness of the Green Belt than the proposed development (IR97 and 99), and considers that the harm to the openness of the Green Belt from the proposed development when compared with the fall-back position is neutral. 25. The Secretary of State concludes that compared to the proposed development there is more harm to the Green Belt from the fall-back position in respect of visual amenity but not to openness. He therefore disagrees with the Inspector that the harm to the Green Belt from the fully operational scrapyard when compared to the proposed development is significantly more harmful (IR97). ... 27. In conclusion the Secretary of State considers that although the case is finely balanced, he disagrees with the Inspector that the proposed development when compared to the fully operational scrapyard would be less harmful to the openness of the Green Belt. ...”
[18]It is submitted on behalf of the Claimants that the Secretary of State could not reasonably have disagreed with his Inspector in this conclusion.[19]The Inspector had acknowledged that although the density and design of the proposed development would be sympathetic to the character and appearance of the surrounding area and would not conflict with planning policy in those respects, the site lies in a remote location and future occupants would rely heavily on the private car to access services, facilities and jobs. She said: “87. ... On this basis the proposal represents an unsustainable form of development and would be inconsistent with advice regarding the location of new housing in PPG3, PPS7 and PPG13”.[20]She finally concluded, on the vital issue of very special circumstances: “101. The proposed development would be inappropriate development in the Green Belt and would be inconsistent with national, regional and local planning objectives regarding housing need, the location of housing and sustainable development. However, it would replace the existing use of the site as a scrapyard which is in itself inappropriate in the Green Belt. I have found that the existing use has the potential to be intensified to a level where it would be significantly more harmful to Green Belt openness and visual amenity than both the current low key use and the proposed development. Furthermore if expanded the existing use would reduce highway safety. These factors, together with the strong support for the proposal from local residents, lead me to the view that the removal of the fall back use of the site would result in considerable benefits for the character and appearance of the countryside and highway safety in the surrounding area. I consider that these benefits represent very special circumstances that outweigh the presumption against development in the Green Belt and the failure of the proposal to meet the objectives of other planning policies”.[21]The key paragraph in the Secretary of State’s decision is this: “29. The Secretary of State has concluded that the application is less harmful to the visual amenity of the Green Belt and highway safety when compared with the fully operational scrapyard. However, he concludes that these benefits either individually or cumulatively, do not amount to the very special circumstances needed to outweigh not only the harm the proposed development would cause to the Green Belt by reason of inappropriateness and failing to maintain openness, but also the conflict with development plan and national policy objectives in PPG3, PPS7 and PPG13 regarding locating housing where there is a need and in sustainable locations. The Secretary of State therefore disagrees with the Inspector’s conclusion that very special circumstances exist (R101)”.[22]The Secretary of State’s conclusion as to the absence of very special circumstances is the second of the two conclusions that remain under attack.[23]On the issue of openness it is submitted on behalf of the Claimant that the conclusion was quintessentially one of judgment based on matters of fact. It was submitted that the Inspector was able to form an expert opinion, based on a site visit, whereas no one from the Secretary of State’s department visited the site. He referred to the volume of the dwellings without any volumetric comparison being available. He should in any event have invited representations of the volume of the proposed dwellings. There was no reason to distinguish the permanence of the buildings from that of stacks of cars and in any event the Inspector was in a better position to judge. His conclusions in paragraphs 23 and 25 imply that the Secretary of State was disagreeing about visual amenity as well as openness.[24]I turn to the principles on which the Secretary of State is entitled to differ from the Inspector.[25]In Lord Luke of Pavenham v. Minister of Housing and Local Government [1968] 1 QB 172 at 191C, Lord Denning MR said: “Did the Minister differ from the inspector on a finding of fact? In answering this question it is essential to draw a distinction between findings of fact by the inspector and an expression of opinion by him on the planning merits. If the Minister differs from the inspector on a finding of fact, he must notify the applicant, in accordance with the rules, before coming to his decision. But if the Minister differs from the inspector on the planning merits, he can announce his decision straight away without notifying the applicant beforehand”.[26]Those requirements were set out in regulations, now superseded by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, rule 17(5) “(5) If, after the close of an inquiry, the Secretary of State -(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it, and affording them the opportunity of making written representations ...”. (a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or (b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy), and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it, and affording them the opportunity of making written representations ...”.[27]It is not always straightforward to decide what is a finding of fact for this purpose. Another decision on a predecessor to rule 17(5) was Portsmouth Water PLC v. Secretary of State for the Environment [1993] 3 PLR 1, a decision of Mr.Lionel Read QC sitting as a Deputy High Court Judge. In that case the question was whether a development would be “detrimental to the character of the locality”. Although he held that a matter of opinion or judgment might also include or involve a “matter of fact”, the opinion on the question in that case was not a “matter of fact” for the purpose of the rule.[28]I was invited, correctly, by counsel for the Defendant to bear in mind that in circumstances where an Inspector has reported, he is reporting to the person who has called in the planning application for permission. The decision can be challenged only on normal administrative law grounds.[29]In Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759 at 780, Lord Hoffman said:
“... The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. ...”
[30]As to the site visit, I agree with Mr.Nigel Macleod QC, sitting as a Deputy High Court Judge in Campaign for Rural Walesv. Secretary of State for Wales (7 April 2000), paragraph 13, that it is unreal to suggest that the Secretary of State has to visit the site before being able to differ from his Inspector on visual matters. As he said, “The issue for consideration is whether the Secretary of State had sufficient material before him on the basis of which he was reasonably able to make a judgment”.[31]I have come to the conclusion that the decision was not flawed by reason of the absence of a site visit. Neither the fully operational scrapyard nor the dwellings were there for either the Inspector or the Secretary of State to see. The Inspector had an advantage in judging the issue of impact on visual amenity, but as to openness, the Inspector did not have a significant advantage.[32]I have also come to the conclusion that the view of the Inspector as to Green Belt openness was a similar kind of decision to that in the Portsmouth Water case. The Secretary of State was not obliged to notify the parties unless he was taking into account what could properly be described as new facts.[33]The relative permanence of the buildings and the cars involved no new evidence and was not in my judgment the kind of fact that required notification to the parties. It was not a consideration that went beyond what the Secretary of State was reasonably entitled to consider.[34]I consider that the Secretary of State was entitled to consider the relative height of the stacked cars and of the ridge heights of the buildings. He did not require and certainly did not obtain volumetric comparisons. Mr.Wolton QC handed to me, without objection, some calculations relating to the ridge heights. However, I have no precise basis for comparison. There could in a sense be no exact comparison between the permanent emergence of parts of the roofs above the 5 metre level and the stacking of cars to a maximum of 5 metres, but not necessarily all the time.[35]In my judgment the Secretary of State had a sufficient basis for differing from the Inspector on Green Belt openness, describing it as he did, as finely balanced. I do not consider that he indicated any significant disagreement with the Inspector about visual amenity. Particularly in the light of his view about Green Belt openness the Secretary of State was entitled to give further consideration to whether there were very special circumstances. There were factors to balance. It cannot in my view be concluded that he went beyond what was reasonable in making that judgment.[36]I have some sympathy for the Claimants and for those who supported the proposal. The replacement of an undoubted eyesore that is likely to become much worse by four well designed dwellings, with benefits to highway safety, might to many seem desirable in “Ancient Arden”. And there is indeed no disagreement about the considerations of visual amenity. However, the considerations of Green Belt openness, and housing policy and sustainability, are legitimate ones that the Secretary of State was entitled to put into the balance. It is not for the court to substitute its view on matters of planning judgment.

Cited in 1 later judgment