Kayak Boat Plans | Earth moving for garden landscaping

Kayak Boat Plans

A topic that has vaguely troubled me for some years is the doubtful status in planning terms of engineering works carried out in a domestic garden in order to realise some of the more adventurous garden designs that are publicised on TV as well as in various magazines.

The General Permitted Development Order is of limited assistance here. Part 1, Class E permits the provision within the curtilage of (among other things) any building or enclosure, swimming or other pool, required for the enjoyment of the dwellinghouse as such. “Building” would include anything that amounts to a structure, so various built features could be included in the design, subject to the limitations and conditions set out in Class E. For example, raised decking (or any balcony or other raised platform) is ruled out if its height from natural ground level is greater than 300 millimetres. Class F also permits hard surfacing, and this is not limited as to its area (in contrast with Class E). [There are, of course, exclusions, limitations and conditions in Class E, which I have discussed in a previous blog post, and do not propose to repeat here.]

When addressing a meeting of SWENFORCE (South West enforcement officers) last week, I speculated that one might also rely on Part 2 in respect of fences, gates, walls and other means of enclosure, but an earth bund (which could in principle come within Part 2 if it performs the function of enclosure) would not be permitted development if it was wider than is really necessary to perform that function or if it does not in reality act as a means of enclosure. In some circumstances, it might be possible to argue that raised banking in the garden does in fact constitute a structure, and is therefore permitted development under Part 1, Class E, but the position remains uncertain.

What is certainly not covered by the GPDO is more extensive excavation, and other earth-moving, taking the form of engineering operations rather than building operations. And yet I can think of quite a few garden landscaping schemes, even involving fairly extensive earth-moving, which have produced an entirely acceptable garden landscape, and which have no appreciable impact in planning terms. It seems to me that there is a lacuna in this respect in the GPDO, and there should perhaps be an additional Class within Part 1 of the Second Schedule to cater for works of this type.

The enforcement officers to whom I was lecturing had not encountered this problem in the course of their work, and this certainly accords with my own impression that most local planning authorities turn a blind eye to what in theory might be unauthorised development in the garden, presumably because no-one ever complains about it. The problem is that if a jealous or resentful neighbour does complain, there may be one or two enforcement officers who will see it as their mission to charge into action over it.

I am only aware of one appeal decision that is in any way relevant to this topic. Enforcement action was taken by Greenwich LBC against works carried out in the rear garden of a house as part of a televised makeover of the garden (instigated and broadcast by the BBC no less!). However, this action appears to have been directed at the structures that had been built, including two cube structures and an area of decking, plus a structure made out of old telegraph poles. In practice, it seems that it was only the height of these that was a problem, and the inspector accepted that reducing them below 3 metres in height would be acceptable. The question of any earth-moving or other landscaping does not seems to have arisen in this case.

In practice, even if the earth-works do amount to engineering operations, it is very unlikely in most cases that it would be expedient, under section 172, to serve an enforcement notice, and I would hope that common sense would prevail. I can’t recall off-hand if the NPPG repeats earlier ministerial advice to the effect that enforcement action should not be taken simply in order to ‘regularise’ the position where planning permission has not been obtained for development, if the development is doing no real harm in planning terms, but this principle should apply in any event.

The proper and permanent solution, however, would be an amendment of Part 1 of the Second Schedule to GPDO to permit engineering works for the purpose of landscaping a domestic garden. No doubt it would be necessary to set certain parameters, but this would be better than the continuance of the uncertain and unsatisfactory situation that obtains at present.

© MARTIN H GOODALL

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Boat Plans Australia | Interpreting the National Planning Policy Framework

Boat Plans Australia

There has been quite a lot of interest in the case of Redhill Aerodrome v. SSCLG since judgment was given in the High Court in July ([2014] EWHC 2476 (Admin)). That judgment has now been overturned by the Court of Appeal in a decision delivered on 9 October, with reasons handed down on 24 October - [2014] EWCA Civ 1386.

Most commentators have concentrated on the court’s interpretation of Green Belt policy, as set out in the NPPF compared with the former PPG2, but the implications of the Court of Appeal’s judgment would appear to go rather wider than this and may be applicable to the interpretation of the NPPF generally, as compared with the way in which ministerial policy on a number of topics was explained in the various policy guidance that was cancelled when the NPPF was published.

The dispute between the parties centred on these two paragraphs :

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” [emphasis added by the Court]

The question which arose for determination by the court was whether this formulation of Green Belt policy, which differs in its wording from the corresponding ministerial advice formerly set out in PPG2, represents a deliberate change of approach on the part of the government, or whether it is no more than a slightly different way of expressing the same policy without thereby intending any change of policy.

The dispute here focused on the meaning and interpretation of the phrase “any other harm”. The meaning of these words in paragraph 3.2 of PPG2 was considered by Frances Patterson QC (sitting as a Deputy High Court Judge – she has more recently been appointed to the bench) in R (River Club) v SSCLG [2009] EWHC 2674 (Admin), [2010] JPL 584. The claimant in that case had submitted that the “other harm” referred to in the third sentence of paragraph 3.2 meant harm to the purposes or objectives of the Green Belt, so that as a matter of law “any other harm” was confined to Green Belt harm. This submission was rejected. There was a requirement to consider the development as a whole to evaluate the harm that flowed from its being inappropriate (by definition) in the Green Belt, together with any other harm that the development may cause, in order to enable a clear identification of harm against which the benefits of the development can be weighed and on that basis to conclude whether very special circumstances exist (as required by ministerial policy) so as to warrant the grant of planning permission.

The Deputy Judge noted that there were no qualifying words within paragraph 3.2 of PPG2 in relation to the phrase “and any other harm”. Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. “Any other harm”, she held, must therefore refer to some other harm than that which is caused through the development being inappropriate. It could refer to harm in the Green Belt context, therefore, but need not necessarily do so. Accordingly, she held that “any other harm” in paragraph 3.2 was to be given its plain and ordinary meaning – it referred to harm which is identified and which is additional to harm caused through the development being inappropriate. Consequently, she rejected the argument that the phrase was constrained so as to apply to harm to the Green Belt only.

The Redhill Aerodrome case came before the same judge (now Patterson J). She accepted the claimant’s submission that the policy matrix is now different, in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.

Here, she continued, the individual non-Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments? On an individual basis, given the clear guidance given in the NPPF, her ladyship had no difficulty in concluding that, in this case, it was not right to take the identified non-Green Belt harms into account. The revised policy framework, she found, is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, she said, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in her judgment it would be wrong to include that consideration as “any other harm”.

The learned judge went on to consider whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In her judgement, she said, it would not be right to do so. That is because the Framework is precisely as it says - a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seemed to her to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear, she felt, that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. However, such phraseology does not appear in the Green Belt part of the NPPF.

Pausing there, I have to say that I have considerable sympathy for Patterson J’s view on this point. I have pointed out on several occasions in this blog that the language used in the NPPF seems in various places to differ sufficiently from the wording of the former policy advice which it has replaced that it could justifiably be concluded that (whether or not it was actually intended to do so) it has brought about identifiable changes of ministerial policy. Several cases that have come before the courts since the NPPF was published seem to support this view, such as Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) (reported here on Friday, 1 November 2013 - Inappropriate development in the Green Belt), and also R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin), to which I drew attention on Tuesday, 21 October 2014. (See Agricultural dwellings - the operational need test ).

Notwithstanding the apparent changes of policy which have (perhaps inadvertently) been effected by the NPPF, Sullivan LJ, in giving the leading judgment in the Court of Appeal, pointed out that excluding non-Green Belt harm from “any other harm” in the second sentence of paragraph 88 of the NPPF would make it less difficult for applicants and appellants to obtain planning permission for inappropriate development in the Green Belt, because the task of establishing “very special circumstances”, while never easy, would be made less difficult. All of the considerations in favour of granting permission would now be weighed against only some, rather than all, of the planning harm that would be caused by an inappropriate development.

Most significantly, he added that if it had been the Government’s intention to make such a significant change to Green Belt policy in the NPPF, one would have expected that there would have been a clear statement to that effect. There has been no such statement. In his lordship’s judgment, all of the indications are to the contrary. He cited three examples:

(1) While there have been some detailed changes to Green Belt policy in the NPPF, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt Policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the NPPF, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: “As with previous Green Belt policy.”

(2) The Impact Assessment in respect of the NPPF published by DCLG in July 2012 said that “The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed.” Under the sub-heading “Policy Changes”, the Impact Assessment said that “Core Green Belt protection will remain in place.” It then identified four proposed “minor changes to the detail of current policy” which would resolve technical issues, but not harm the key purpose of the Green Belt, “as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained.” On the face of it, paragraphs 87 and 88 of the NPPF would appear to constitute the “central policy” which the Government did not intend to change.

(3) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector’s statement in the Redhill Aerodrome appeal decision that the River Club approach to “any other harm” in the balancing exercise is reflected in decisions by the Secretary of State since the publication of the NPPF. The court was not referred to any decision in which a different approach has been taken to “any other harm” since the publication of the NPPF.

On the other hand, Sullivan LJ accepted that the NPPF means what it says, and not what the Secretary of State would like it to mean. Nonetheless, he said, if the NPPF has effected this change in Green Belt policy it is clear that it has done so unintentionally. The claimant (the respondent in the Court of Appeal) did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the NPPF. The text of the policy has been reorganised, but all of its essential characteristics remain the same. It had been submitted that the change in policy was to be inferred, not from the wording of paragraphs 87 and 88, but from the other policies in the NPPF which “wrapped around” Green Belt policy, and which were, it was submitted, very different in some respects from previous policies in the earlier policy documents which were replaced by the NPPF. At the heart of the claimant’s case was “Context, context, context.”

It is true, his lordship accepted, that the “policy matrix” has changed in that the NPPF has, in the words of the Ministerial foreword, replaced “over a thousand pages with around fifty, written simply and clearly.” Views may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter. There have been changes to some of the non-Green Belt policies, and there have also been changes to detailed aspects of Green Belt policy, not all of which were identified in the Impact Assessment (Europa Oil and Gas being one example).

However, Sullivan LJ did not accept the premise which underlay the claimant’s case, as Patterson J had done, that the other policies “wrapping around” the Green Belt policy in paragraphs 87 and 88 of the Framework are “very different” from previous national policy, or that, as Patterson J put it, there has been “a considerable policy shift”.

Although this case was primarily focused the interpretation of “any other harm” in the Green Belt context, the Court of Appeal did accept that there are certain respects in which some other details of ministerial policy have been changed by the NPPF. Nevertheless, Sullivan LJ suggested that if it had been the Government’s intention to make any significant changes to policy in the NPPF, one would have expected that there would have been a clear statement to that effect. He accepted, on the other hand, that the NPPF means what it says, and not what the Secretary of State would like it to mean. This judgment therefore seems to accept the possibility that some minor changes to ministerial policy may have been effected by the NPPF unintentionally.

This judgment therefore still leaves an element of uncertainty over the correct interpretation of certain paragraphs of the NPPF, but it would seem that if a particular paragraph of the NPPF appears on the face of it to effect a significant change of policy, this in itself should indicate that no such change of policy was in fact intended, without a clear statement on the part of ministers of their intention to make such a policy change. In cases of this sort, the wording of the NPPF should be taken to be no more than a restatement of previous policy, albeit in slightly different language. The only problem with this approach to the interpretation of the NPPF is that it requires a knowledge of, and reference to, the relevant PPGs or PPSs which the NPPF was intended to replace in order to construe the changed language of the NPPF correctly, which would seem to undermine the intention of publishing the NPPF in the first place.

One other implication of the Court of Appeal decision in Redhill Aerodrome is that one or two decisions that have proceeded on the basis of changes of policy that have apparently been brought about by the NPPF may be open to question. In particular, it seems to me that R (Embleton PC) v. Northumberland CC (which I discussed recently – see above) may have been wrongly decided. The judge was persuaded in that case that the test of operational need for a proposed agricultural dwelling under paragraph 55 of NPPF is different from, and much less prescriptive than, the test under Annex A of PPS7. Applying Sullivan LJ’s approach to this issue, there would appear to be no indication that what would amount to a fairly significant shift in ministerial policy on a matter of substance was intended here, and so (contrary to the court’s decision in Embleton PC), the conclusion must be that an objective test substantially similar to the test laid down by Annex A of PPS7 must still be applied, notwithstanding the apparently less demanding requirement expressed by paragraph 55 of the NPPF.

I always said that it was folly for ministers to jettison the well established and clearly understood policy advice set out in PPGs and PPSs, and that the attempt to boil down statements of ministerial planning policy to a single document that was intended to comprise no more than 50 pages would lead to difficulty and uncertainty, and resulting litigation. So it has proved, and cases of which Embleton PC and Redhill Aerodromeare only a sample will continue to trouble the courts for some time to come, until or unless a future Secretary of State recognises that a more complete statement of ministerial planning policy, substantially in the form of the cancelled PPGs and PPSs, is the only way of resolving the problem.

© MARTIN H GOODALL

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Boat Plans Canada | Agricultural dwellings the operational need test

Boat Plans Canada

On Monday 2 April 2012 , I published a post entitled “Agricultural development after the NPPF” in which I suggested that there need not be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions.

I felt that without referring to the detailed guidance set out in Annex A of PPS7, it would be difficult in practice to give effect to the policy set out in paragraph 55 of the NPPF, which simply provides that isolated homes in the countryside should be avoided unless there are special circumstances such as (among other things) the essential need for a rural worker to live permanently at or near their place of work in the countryside. Unlike PPS7, the NPPF offers no guidance as to how “the essential need for a rural worker to live permanently at or near their place of work” is to be assessed in practice, whereas Annex A of PPS7 was notably prescriptive in setting out the criteria that would have to be met in order to prove that need.

I concluded that De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annex A of PPS7 in the form of a Circular. Failure to do so, I surmised, could lead to legal disputes which might otherwise be avoided.

I am grateful to a correspondent for drawing my attention to just such a dispute. This was an application for judicial review of a planning permission in the High Court in R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin). It was what can only be described as a ‘root and branch’ attack on the grant of planning permission in this case, which included a temporary permission for an agricultural dwelling. I propose, however, to confine myself to the challenge regarding the operational justification for an agricultural dwelling. This, as well as every one of the other grounds of challenge, was rejected by the court.

It was common ground between the parties that government guidance was a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27th March 2012 and paragraph 55 of NPPF thereafter. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis, whereas Paragraph 55 of NPPF is merely expressed in the terms I have quoted above. Thus, the judge observed, the guidance in paragraph 55 of NPPF is significantly less onerous than it was in PPS7.

The judge accepted that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular he did not accept the claimant’s submission that the NPPF requires that the proposal is economically viable. As the LPA pointed out, this was a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there [although, in my own view, this seems to beg the question as to how that essential need is to be objectively assessed]. In the event, the judge agreed that the evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced. In his view the Committee were entitled to accept that evidence. It was not an irrational decision.

His lordship equally agreed that the decision was not invalidated by the failure to provide the agricultural expert’s figures to the Committee. The figures were not available at the date of the meeting. It was not in dispute that the Committee were provided with an expert report and that a principal objector had the opportunity to address the meeting. In the course of his submissions the objector criticised the expert’s report, so the issue was before the Committee. The Committee were nevertheless entitled to reject that submission and plainly did so.

The learned judge held that, whilst it was no doubt open to the Committee to reject the planning application it could not in his view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let. A short term let is terminable after 6 months, which is far shorter than the 3 years for which the temporary permission was granted. In those circumstances the decision to grant the permission could not in his view be said to be irrational or unreasonable.

This judgment would tend to suggest that my supposition that an objective test substantially similar to the detailed test required by Annex A to PPS7 would still have to be applied in order to give effect to paragraph 55 of the NPPF may not be supported by the courts, in light of the much less prescriptive language used in that paragraph of the NPPF. I cannot believe that this is what ministers intended, but it would appear that their insistence on cutting the statement of ministerial planning policy to the bare bone may have come back to bite them.

[UPDATE: In light of the Court of Appeal decision in Redhill Aerodrome v. SSCLG (see now Interpreting the National Planning Policy Framework (6 November 2014), there must be some doubt as to the correctness of the approach taken by the High Court in Embleton PC.]

© MARTIN H GOODALL

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Boat Plans Nz | Green Belt policy – the need for reform

Boat Plans Nz

Last week I came across a useful contribution to the Green Belt debate by Peter Village QC and Jonathan Darby, which you can access at http://www.39essex.com/docs/general/pv_and_jda_green_belt_article_final_.pdf

They call (as I and other commentators have done recently) for a sensible rethink of Green Belt policy, rather than the die-hard defence of existing Green Belt boundaries that ministers have lately adopted (undoubtedly for what they perceive as their short-term electoral advantage in the run-up to the General Election), irrespective of its proper role and value in policy terms, and irrespective of the consequences of such an unyielding approach in terms of unbuilt homes to meet the urgent needs of our population.

There are two important points that must be understood about the Green Belt. First, our Green Belts have been massively expanded within the past 30 to 40 years. The Green Belt was never intended to cover such vast swathes of land as it does now, and it really does need to be objectively reviewed and rolled back in some areas. Secondly, until the late 1980s, there was some flexibility in the application of Green Belt policy.

This was well illustrated by the judgment in Cranford Hall Parking Ltd v. SSE [1989] J.P.L. 169. Relevant policy at that time was set out in Circular 14/85, which was couched in language not dissimilar to later policy statements in PPG2, yet not in such absolute terms. The Circular pointed out quite clearly that the fact that a site was Green Belt land did not in itself constitute a clear-cut and sound reason for refusing permission. The court, in quashing an appeal decision which had refused planning permission for development in the Green Belt, held that the Inspector should have considered whether or not this development would bring about demonstrable harm to the Green Belt. Thus (at that time) development was not automatically unacceptable in the Green Belt; it was a question for the judgment of the decision-maker.

A similar decision was reached in Barnet Meeting Room Trust v SSE (1990) 60 P. & C.R. 137. In that case an Inspector had recommended that the Secretary of State should allow an appeal against the refusal of development in the Green Belt in these terms:

“I conclude that the development would not significantly detract from the character and appearance of the area, nor significantly threaten the integrity of the Metropolitan Green Belt, and that positive benefits would flow from the proposed landscape treatment of a former derelict site.”

The Inspector did recognise that, in a strict sense, the proposal would be unlikely to “preserve or improve the open nature of the area” in terms of the requirements set by para. 9.16 of the Greater London Development Plan. Nonetheless he recommended that on balance, and bearing in mind the established need for the development, the appeal should be allowed.

By this time, PPG2 in its original form had been published, and the Secretary of State’s decision letter, rejecting the Inspector’s recommendation, ended with the words: “The Secretary of State is of the opinion that, on balance, there are not the special circumstances to justify development in a Green Belt. Accordingly he disagrees with the recommendation.”

The Deputy Judge (Sir Frank Layfield QC) found that the Secretary of State had paid no great attention here to the need for consistency of decisions in comparable instances or to the need, when related decisions are cited to him, to provide reasons why those decisions should be regarded as either of no or limited value to the case under consideration. The learned Deputy Judge held that, very importantly in the Green Belt, the general presumption in favour of development applied (at that time) in favour of allowing applications for development as it did in other areas (relying on Cranford Hall Parking).

In that previous case there was a presumption derived from earlier circulars that were still current at that time that inappropriate development would not be permitted within the Green Belt and there were, no doubt, cases where the fact that the proposals were inappropriate and damaging to the interests of Green Belt policy would be self-evident. But the circular pointed out, quite clearly, that the fact it was in Green Belt land did not in itself constitute a clear cut and sound reason for refusing permission. The right approach was a presumption that planning permission would always be allowed which would be overridden where it was shown that the development would cause demonstrable harm to the Green Belt policy. In this regard, no reason or explanation had been given as to why the provisions of Circular 14/85 (which included the general presumption in favour of development) were not considered. Since development in the green belt was a question of fundamental importance, it was for that reason alone that this decision was quashed in the absence of adequate reasoning in that regard.

Those two cases were, of course, decided within a rather different policy context compared with that which obtains at present, and they have no practical application within the current policy regime; but they both serve to show that an alternative policy approach is perfectly workable, and would not involve a ‘free-for-all’ approach to development in the Green Belt. If the principles illustrated by those two cases were to be re-applied now (by means of revised ministerial policy on this issue), there would in future be an objective examination, as there used to be until the late 1980s, of the site’s ‘Green Belt value’, and consideration as to whether its development would cause demonstrable harm to the openness of the Green Belt (which is the primary objective of its designation as such). As I can clearly recall from the early days of my career as a planning lawyer, going back as far as 1979, appeals could be and in practice were allowed in appropriate cases where the site made no material contribution to the Green Belt and/or where its development would not cause any demonstrable harm to the openness of the Green Belt. The present rigid resistance to any development in the Green Belt, save only in the most exceptional circumstances, is unnecessary and undesirable.

© MARTIN H GOODALL

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Plywood Boat Plans | Common sense about the Green Belt

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I get the impression that there is a gradual dawning of realisation, not only within certain think tanks but also among ministers and their advisers, that Green Belt policy has been allowed to get out of hand, and that far too much land has been designated as Green Belt, with the result that there is no longer sufficient land readily available near existing towns and cities to meet the urgent requirement for house-building where it is needed. The penalty is a chronic housing shortage and spiralling house prices, particularly in the South-east of England.

The original object of establishing the Green Belt was to discourage uncontrolled urban sprawl into the open countryside around our larger towns and cities and to prevent the coalescence of two or more large neighbouring towns. No-one would disagree with that broad objective; but two undesirable elements have crept into Green Belt policies over the years.

First, the Green Belts have been expanded to a far greater extent than was originally intended and to a far greater extent than is necessary to achieve their objective. For example, the Metropolitan Green Belt around London was intended to be about 12 to 15 miles deep. In some places it is now well over 30 miles deep. I recall, for instance, massive extensions to the Green Belt in Surrey in the 1980s for which there was no need and no objective justification. Our Green Belts now encompass huge areas of land that ought never to have been incorporated in them.

There needs to be a fundamental review of the extent of the Green Belt throughout the country, with a view to reducing substantially the extent of their designated area. This review should proceed on the presumption that extensions of Green Belts that have occurred within the past 35 years should be reversed unless there are very convincing reasons for those extensions, having regard to the primary objective of the Green Belts.

Local political pressures are so strong that it would be impracticable for this to be dealt with at a local level. This is an exercise that will have to be carried out on a national level by central government. Notions of localism are simply going to have to be suspended, if not abandoned altogether as totally unrealistic in face of the dire housing crisis facing the country. Local planning authorities should be required to revise Green Belt boundaries in accordance with the conclusions of this departmental review.

In future, there should be a very strong presumption against further extensions of existing Green Belts. There should, on the other hand, be regular reviews of both the inner and outer boundaries of Green Belts to examine the desirability of removing further land from the Green Belt if changed circumstances require this.

The second undesirable element that has crept into Green Belt policy is an entirely unnecessary and inappropriate rigidity in the treatment of development proposals, which seeks to resist all development in the Green Belt unless either it is deemed to be ‘appropriate’ development or exceptional circumstances can be demonstrated. This rigidity has been further compounded by the unfortunate wording of the relevant policy guidance in the NPPF, compared with the wording of the former PPG2. [See Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin), referred to in this blog on Friday, 1 November 2013 – “Inappropriate Development in the Green Belt”.]

Rather than this increasingly inflexible approach, the advice in the NPPF should be amended to indicate that within Green Belts development should not be permitted which would prejudice the objectives of the Green Belt and/or which would compromise its openness, but that in determining applications for development in the Green Belt local planning authorities should examine the contribution that the application site in question makes to the Green Belt (in other words, its ‘Green Belt value’). It would thus be the impact of the development on the Green Belt as a whole that would be the determining factor, rather than the ‘appropriateness’ of the development in the Green Belt (in land use terms) or any question of exceptional circumstances being required to justify the development. The essential point is that Green Belts are not and never have been intended to create wholly development-free zones in the countryside.

There is one other issue that also needs to be addressed when considering Green Belt boundaries. Over the years a number of anomalies have been created by inept drawing of the Green Belt boundaries. There are quite a few examples, for instance, of the Green Belt boundary cutting across the middle of a residential curtilage. This makes no sense at all, and should be corrected. A related problem is the drawing of a thick line on small-scale maps, with the result that it is impossible to tell with any precision where the Green Belt boundary actually lies. This is an issue that can be addressed by local planning authorities right now, without having to wait for any change of ministerial policy. In their Delivery DPDs (or equivalent DPDs, following adoption of their Core Strategies), local planning authorities should take the opportunity of ironing out anomalies of this sort in the detailed Green Belt boundary at a local level. This is an issue that must be urgently addressed, and not merely in relation to recently fixed Green Belt boundaries, but also in respect of boundaries where these anomalies have existed for a good many years. Local councils really must grasp this nettle, or face the possibility of challenges by way of judicial review if they fail to address the point in their second stage DPDs.

Revision of the NPPF (and/or of the NPPG, as appropriate) should reiterate the principle that the Green Belt boundary should be established on a strong defensible line. This should be a clearly defined and reasonably permanent physical feature in the landscape, such as a river, road or railway. Drawing the boundary across the middle of fields or gardens is totally unsatisfactory, and even field boundaries may not be sufficiently permanent to form a reliable long-term boundary. At the very least, the Green Belt boundary should exclude existing residential development (except in settlements where the Green Belt ‘washes over’ the entire village) and this exclusion must extend to the whole of the residential curtilage. What is required is not a straight line but a clearly defined and readily defensible boundary, even if this may look untidy on a map.

The knee-jerk reaction, both locally from the NIMBYs and nationally from the usual suspects, such as the CPRE, whenever any reform or relaxation of Green Belt policy is suggested must be ignored. These people have become accustomed to regard the planning system as a useful tool for resisting change. But such protests should not deter either this government or its successors after the General Election next year from carrying through this necessary reform of Green Belt policy, so as to enable the essential expansion of housing development around our towns and cities.

© MARTIN H GOODALL

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Canoe Boat Plans | Inappropriate development in the Green Belt

Canoe Boat Plans

One of the concepts carried through into the NPPF from the former PPG2 is that those types of development that are ‘inappropriate’ in the Green Belt should not be permitted. Paragraphs 89 and 90 of the NPPF indicate types of development that are inappropriate in the Green Belt, and those that may be appropriate in the Green Belt, provided that the openness of the Green Belt is preserved and there is no conflict with the purpose of including the land in the Green Belt.

In Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) the High Court was called upon to consider whether the prohibition on ‘inappropriate’ development extended not only to built development of the types listed in paragraph 90 but also to changes of use to any of the uses within those same categories. The developer challenged an appeal decision on the grounds (among others) that the inspector was wrong to conclude that a change of use from agricultural use to outdoor sport and recreation was inevitably inappropriate development and thus not to be permitted in the absence of very special circumstances, and that the Inspector was wrong to conclude that Paragraph 89 of the NPPF did not apply to changes of use.

The first point that the Deputy Judge made is that “development” as used in the NPPF has the same meaning as the definition of that term in section 55 of the 1990 Act, and this relates not just to operational development but also includes a material change of use. It follows that a material change of use is capable of being inappropriate development within the meaning of Paragraph 87 of the NPPF.

The policy set out in paragraph 3.12 of PPG2 in relation to Green Belt development has not been carried through into the NPPF. The effect of Paragraphs 87, 89 and 90 of the NPPF, when read together, is that all development in the Green Belt is inappropriate unless it is either development falling within one or more of the categories set out in Paragraph 90 or is the construction of a new building or buildings that comes within one of the exceptions referred to in Paragraph 89.

Paragraph 90 contemplates not merely the construction of buildings but other development as defined by section 55 of the 1990 Act falling within the identified categories. Thus a change of use falling within one of the categories identified in Paragraph 90 is in principle capable of being not inappropriate. That being so, the Deputy Judge did not agree with the Inspector that no material changes of use fall or are capable of falling within Paragraph 90. The concept of development includes a material change of use and therefore a change of use for example to permit mineral extraction is capable of being not inappropriate providing that the change of use preserves openness and does not conflict with the purposes of including land in the Green Belt.

The real issue, therefore, is whether development in the form of a material change of use outside the categories identified in Paragraph 90 must by definition be inappropriate development or whether such a change of use has to be considered on its merits, with a decision to be taken as to whether it is inappropriate or not inappropriate development, as was the position under PPG2.

As noted above, the structure of the Green Belt policy has changed compared with the former PPG2, as a result of which there is no general exception for changes of use that maintain openness and do not conflict with the purposes of the Green Belt. Paragraph 90 contains a closed list of classes of development that are capable of being not inappropriate and Paragraph 89 contains a closed list of classes of new building construction not falling within Paragraph 90 that are not or may be not inappropriate by way of exception to the general rule that the construction of new buildings is to be regarded as inappropriate in the Green Belt. The Deputy Judge observed that, whilst it is true to say that the reference to "other forms of development" and the use of the word "other" in Paragraph 90 suggest that there are forms of development other than those listed in that paragraph that are capable of being not inappropriate, he considered that those words and phrases refer back to the exceptions listed in Paragraph 89.

Paragraph 89 is exclusively concerned with the construction of new buildings. It does not apply and is not expressed to apply to any other form of development. The word and phrase in the opening lines of Paragraph 90 that were relied on by the developer do not undermine this analysis, and do not lead to the conclusion that other forms of development not listed in Paragraph 90 and not capable of coming within the scope of Paragraph 89 are nonetheless capable of being development that is not inappropriate. If that was so then Paragraph 90 would not have been drafted in the way it has been drafted (as a closed list of classes of development that is not inappropriate). Contending otherwise, his lordship held, applies an over legalistic approach to the construction of a policy statement. When Paragraph 87, 89 and 90 are read together, as they should be, the meaning is clear. Development in the Green Belt is inappropriate (and thus can be permitted only in very special circumstances) unless it falls within one of the exceptions identified in Paragraphs 89 and 90.

On the second ground of challenge, the developer submitted that the Inspector failed correctly to construe Paragraph 89 because he decided that the word "it" in the second bullet point was a reference to the facilities element of any proposal when it should have been construed as applying to the relevant use relied on – i.e. outdoor sport or recreation or cemeteries. The Deputy Judge did not agree. The purpose of the exceptions to the general rule set out in the first sentence of Paragraph 89 is to distinguish between those types of new buildings which would be inappropriate if built in the Green Belt from those that are not. Some types of building are not further qualified. A new building for agriculture or forestry is not inappropriate. The provision of facilities for outdoor sport, outdoor recreation and cemeteries on the other hand is only potentially not inappropriate. Such a facility will only be not inappropriate development if it "… preserves the openness of the Green Belt and does not conflict with the purposes of including land within it…". If these further requirements are not made out then the proposed buildings will not fall within the exception and will fall within the general rule.

The Deputy Judge relied on the analysis of Ouseley J in Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) where he said:

"Secondly, as Green Belt policies NPPF 89 and 90 demonstrate, considerations of appropriateness, preservation of openness and conflict with Green Belt purposes are not exclusively dependent on the size of the building or structures but include their purpose. The same building, as I have said, or two materially similar buildings; one a house and the other a sports pavilion, are treated differently in terms of actual or potential appropriateness. The Green Belt may not be harmed necessarily by one but is harmed necessarily by another. The one is harmed by because of its effect on openness, and the other is not harmed by because of its effect on openness. These concepts are to be applied, in the light of the nature of the particular type of development."

Thus in each case it will be for the decision maker to apply this approach in order to decide whether a particular building which is claimed to provide appropriate facilities for outdoor sport or recreation to decide whether what is proposed preserves openness and does not conflict with the purposes of including land within the Green Belt. applying these principles. If it does, then what is proposed will come within the potential exception created by the second bullet point in the list in Paragraph 89. If it does not, then it will fall within the scope of the first sentence of that paragraph and can be permitted only if very special circumstances are made out.

The Deputy Judge considered that very special circumstances will have to be shown for a change of use to Green Belt land not falling within one of the classes identified in Paragraph 90 of the NPPF. If that is so, there is no logic in requiring very special circumstances to be shown, for example, for a change of use from agricultural land to an open sports ground (where the impact on openness is likely to be less than the facilities to be constructed in connection with the changed use) but not applying the same constraint to facilities to be constructed at such a site if a change of use is permitted, as long as the requirement in the second bullet point within Paragraph 89 that a facility should preserve the openness of the Green Belt and not conflict with the purposes of including land within it is read in the way referred to by Ouseley J in Europa Oil and Gas. Merely because Green Belt land is used for outdoor sport or recreation does not justify permitting the construction of a building or buildings that fail to preserve the openness of the Green Belt or conflict with the purposes of including land in the Green Belt, applying the approach to these concepts identified by Ouseley J in Europa Oil and Gas.

The Deputy Judge added that there is another obvious reason for adopting this approach. If a promoter of a scheme was able to obtain permission to change the use of agricultural to an open sporting ground he might well wish to construct or add to facilities in subsequent years. There would be great danger in not requiring very special circumstances to be demonstrated for future applications for the provision of facilities at existing outdoor recreation or sporting sites in the Green Belt. The construction which his lordship considered is appropriate eliminates that risk as long as the requirements imposed by the second bullet point in Paragraph 89 to preserve the openness of the Green Belt and avoid conflict with the purposes of including land in the Green Belt are read subject to the qualifications referred to by Ouseley J in Europa Oil and Gas.

© MARTIN H GOODALL

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Boat Blind Plans | Judicial Review of office to residential changes

Boat Blind Plans

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

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Boat Plans Catamaran | Government’s U turn “to save the Green Belt”

Boat Plans Catamaran

You can tell there’s an election coming. Even though ministers and their advisers are well aware that there is an urgent need to release land, including Green Belt land, to meet the requirements for housing land, De-CLoG has issued a statement in which they once again trot out the old mantra that, once established, Green Belt boundaries should only be altered in exceptional cases.

Eric Pickles is quoted as saying: “Protecting our precious green belt must be paramount. Local people don’t want to lose their countryside to urban sprawl, or see the vital green lungs around their towns and cities lost to unnecessary development.” [Translation: “We know the NIMBYs are wrong really, but they might go and vote for UKIP, so at all costs we are going to say and do whatever it takes to get the Tory defectors back into fold, even though it makes a complete nonsense of our pledge to get more houses built. Getting ourselves re-elected has to come first.”]

Uncle Eric and his friends have suddenly re-discovered ‘Localism’ and are claiming that “Local Plans are now at the heart of the reformed, democratic planning system, so councils can decide where development should and shouldn’t go in consultation with local people.”.

Planning officers can naturally be expected to take a more objective view of these matters, because they have to work out a way of planning for the housing needs of their localities, but this had led them (unsurprisingly) to recommend to their authorities that some Green Belt land will have to be released in order to meet objectively assessed targets (even though these are no longer set by central government.) But to counter this, the government’s on-line guidance has been amended to read that assessing need is just the first stage in the preparation of a council’s local plan, and that in assessing the suitability of land to meet the identified need for housing over the plan period, they “should take account of any constraints such as Green Belt which indicate that development should be restricted and which may restrain the ability of an authority to meet its need”.

This makes it quite clear that having objectively assessed housing need in their area, LPAs should feel free to ignore it, if is politically inexpedient to release green field sites (and particularly some parts of the Green Belt) in order to allocate sufficient land to meet their housing need. If this advice is to be taken at face value, it would appear that the government is abandoning the requirement that LPAs must demonstrate that they have a five-year housing land supply, plus a 5% margin (six years’ supply in cases where council’s have failed to produce sufficient housing land in the past, in the form of committed schemes) if they can excuse themselves by pointing to constraints such as the Green Belt (or any other plausible excuses). It also seems to let them off the hook of having to co-operate with neighbouring authorities in the provision of housing land, even though the 2011 Act requires them to do so.

This is bad news for house-builders, and it is bad news for first-time buyers. It also makes a nonsense of recent legislative and policy changes which were directed at securing the provision of adequate housing land. But then, as I said, we are now in the run-up to the General Election, and I did predict a major U-turn sooner or later in this pre-election period. This latest ministerial statement seems to herald that U-turn, and there will no doubt be more to come, as an increasingly panic-stricken Tory Party thrashes about trying to find something, anything, that might secure a few more votes and get them across the winning line next May.

© MARTIN H GOODALL

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