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England and Wales Court of Appeal (Civil Division) Decisions
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Heath & Hampstead Society, R (on the application of) v Vlachos & Ors [2008] EWCA Civ 193 (19 March 2008)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/193.html
Cite as:
[2008] JPL 1504,
[2008] 2 P & CR 13,
[2008] 3 All ER 80,
[2008] EWCA Civ 193
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE
COURT
MR JUSTICE SULLIVAN
CO/1454/2006
|
|
Royal Courts of Justice Strand,
London, WC2A 2LL |
|
|
19/03/2008 |
B e f o r e :
LORD JUSTICE WALLER
Vice President of the Court of Appeal, Civil
Division
LORD JUSTICE SEDLEY
and
LORD JUSTICE
CARNWATH
____________________
Between:
|
The Queen on the Application of Heath
& Hampstead Society
|
Respondent
|
|
- and -
|
|
|
Messrs Alex and Thalis
Vlachos
|
First and Second
Appellants
|
|
- and -
|
|
|
London Borough of
Camden
|
Third
Appellant
|
____________________
David Elvin QC & Charles Banner (instructed by Messrs David
Cooper & Co) for the First and Second Appellants
Peter Harrison QC
(instructed by London Borough of Camden Legal Services) for the Third
Appellant
Anthony Porten QC (instructed by Messrs Hunt & Lisners) for the
Respondent
Hearing date: Tuesday 26th February, 2008
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Carnwath LJ :
Introduction
- This appeal raises a short question on the
interpretation of the Metropolitan Open Land ("MOL") policy. It concerns a
planning permission granted by Camden Council on 23 January 2006 for -
"demolition of the existing part 1, part 2-storey dwellinghouse
with associated terraces and brick shed and erection of a part 2, part
3-storey dwellinghouse with associated landscaping."
- The existing dwellinghouse is known as The Garden
House in the Vale of Health, London, NW3. It is on a backland site to the rear
of 7-12 Heath Villas. The site slopes down towards the Hampstead pond to the
east. The house itself is a 1950s dwelling-house with two storeys and a
pitched roof, described as "modest and unassuming" and "architecturally
uninspiring". There is a high brick wall separating the house from the houses
in Heath Villas, the top floors of which overlook the site. On the other side
in front of the house facing the pond, there is a raised patio with steps down
to the substantial garden.
- The new building would on any view be substantially
larger than the existing, although no higher (because much of the increase
would be below ground level). Depending on how the calculations are done,
there would be a three-fold increase in floor space; perhaps a four-fold
increase in built volume; and between two and two-and-a-half times increase in
its footprint. However, the council were apparently satisfied that the
proposal was consistent with the relevant policies, because it would not be
"materially larger". They were advised by their planning officer that the
limited increase to the existing residential use was acceptable in planning
terms (para 6.4), that the extension would not have any impact on the
buildings in Heath Villas (para 6.5.5), that the proposed architectural
treatment would "significantly break down the perceived bulk of the building
in views across the pond" (para 6.6.1), and that:
"… the enlarged footprint of the proposed dwelling is largely
achieved towards the rear of the site and, as this will not be visible from
the ponds, it is considered that this will only have a minimal impact on the
character and setting of the MOL ..... "
- The officer's reasoning was specifically
incorporated into the statutory reasons for the grant of permission, and
accordingly must be taken as representing the formal view of the council
itself.
- The Society contends that this advice and the
decision based on it reflected a misinterpretation of the applicable policy.
The judge agreed, and quashed the permission.
Green Belt and MOL policy
- The applicable planning policies were described in
detail by Sullivan J, and it is unnecessary to repeat them. Most importantly,
in the present context the site is on land designated as Metropolitan Open
Land. On such land new development is strictly limited, but less restrictive
policies apply to what is known as "appropriate development".
- The concept of "appropriate development" is
well-established in the context of Green Belt policy. It reflects a
distinction between two stages of the analysis: whether development is
"appropriate" in the Green Belt and how much harm to the Green Belt a
particular proposal will do (see e.g. per Keene LJ, Kemnal Manor Memorial
Garden v Secretary of State [2005]
JPL 1568 para 28). Certain categories of development, such as agricultural
buildings, recreational facilities, and cemeteries, have traditionally been
regarded as acceptable in principle, subject to other planning considerations.
"Inappropriate development", which includes most forms of residential or
commercial development, is unacceptable in principle, and is permitted only in
"very special" circumstances. The same policy approach is applied to land in
the MOL. It follows that an important first step, or "threshold" question (as
the judge described it), in relation to an application for development in the
Green Belt or the MOL, is to decide on which side of the
appropriate/inappropriate line it falls.
- The relevant Green Belt policy is found in PPG 2:
Green Belts. There is a general presumption against "inappropriate
development" which should not be approved "except in very special
circumstances". Paragraph 3.3 states:
"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 harm by reason of inappropriateness, and any other
harm, is clearly outweighed by other considerations." (para 3.2)
Under paragraph 3.4, construction of new buildings in the Green Belt is
"inappropriate", unless it is for certain purposes, which are defined with
varying degrees of specificity. They include, for example, "agriculture and
forestry"; and -
"- essential facilities for outdoor sport and outdoor
recreation, for cemeteries, and for other uses of land which preserve the
openness of the Green Belt and which do not conflict with the purposes of
including land in it .....;"
- The relevant category for present purposes is:
"- limited extension, alteration or replacement of existing
dwellings (subject to paragraph 3.6 below);"
The expression "not materially larger" comes in paragraph 3.6, to which the
latter category is said to be "subject":
"3.6 Provided that it does not result in disproportionate
additions over and above the size of the original building, the
extension or alteration of dwellings is not inappropriate in Green Belts.
The replacement of existing dwellings need not be inappropriate, providing
the new dwelling is not materially larger than the dwelling it replaces.
Development plans should make clear the approach local planning authorities
will take, including the circumstances (if any) under which replacement
dwellings are acceptable."
- Even when a building has been accepted as
"appropriate", there remains a second question whether it is acceptable on
other grounds. Thus, paragraph 3.15 of PPG 2 deals with "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."
- In relation to MOL policy, the corresponding
definition is found in Policy N1 in the revised Camden Unitary Development
Plan, which states that the council "will only grant planning permission for
appropriate development on Metropolitan Open Land". The categories are
similar, but not identical, to those defined by PPG2 for Green Belts, but they
include in the same words:
"g) the limited extension, alteration or replacement of existing
dwellings."
It is not in dispute that this, like the same category in PPG2, is to be
interpreted by reference to paragraph 3.6 of the PPG. It is also accepted
that, since PPG2 is a national policy document, the criterion should be given
a consistent interpretation across the country.
- Accordingly, it is common ground that the relevant
test, to decide whether a proposed replacement dwelling is "appropriate", is
whether it would be "not materially larger than the dwelling it replaces".
The Issue
- The issue is a short one: whether the "materially
larger" test imports, solely or primarily, a simple comparison of the size of
the existing and proposed buildings; or whether it requires a broader planning
judgment as to whether the new building would have a materially greater impact
than the existing building on the interests which MOL policy is designed to
protect. Mr Elvin's case, in a nutshell, is that, in the context of policies
designed to protect the MOL, the development cannot said to be "materially"
larger, if the increase has no "material" impact on the objectives of the MOL;
or at least that the authority could reasonably take that view.
- The approach of the court to such issues was
explained by Brooke LJ in R v Derbyshire CC ex p Woods [1997] JPL 958,
967 (a case concerning the application of Departmental Planning Guidance Note
of Minerals):
"If there is a dispute about the meaning of the words included
in a policy document which a planning authority is bound to take into
account, it is of course for the court to determine as a matter of law what
the words are capable of meaning. If the decision maker attaches a meaning
to the words they are not properly capable of bearing, then it will have
made an error of law, and it will have failed properly to understand the
policy… If there is room for dispute about the breadth of the meaning the
words may properly bear, then there may in particular cases be material
considerations of law which will deprive a word of one of its possible
shades of meaning in that case as a matter of law. "
- He referred to this as "the underlying principle
of law" which had been the basis of the decision of Auld J in Northavon DC
v Secretary of State for the Environment [1993] JPL 761. He had been
concerned with the meaning of the expression "institutions standing in
extensive grounds", in an earlier version of PPG 2 on Green Belt policy, of
which he had said (at p 763):
"The words spoke for themselves and were not readily susceptible
to precise legal definition. Whether a proposed development met the
description was in most cases likely to be a matter of fact or degree and
planning judgment. He [the judge] said 'in most cases' because it was for
the Court to say as a matter of law whether the meaning given by the
Secretary of State or one of his Officers or Inspectors to the expression
when applying it was outside the ordinary and natural meaning of the words
in their context…. The test to be applied by the court was that it should
only interfere where the decision-maker's interpretation was perverse in
that he has given to the words in their context a meaning that they could
not possibly have or restricted their meaning in a way that the breadth of
their terms could not possibly justify."
- There is perhaps a slight difference of emphasis
between the two statements, in that Brooke LJ places more weight on the role
of the court in determining the "breadth of meaning" of the words. This may
reflect the fact that Auld J was concerned with a decision of the Secretary of
State interpreting his own policy. In that context it is understandable that,
short of perversity, the court will respect his interpretation of his own
words. By contrast, where, as in Derbyshire and in the present case,
the decision is that of a local authority applying national policy, the
importance of consistency of interpretation as between different authorities
becomes a significant, additional factor.
The judgment below
- Sullivan J rejected Mr Elvin's argument (paras
19-22). He thought that the exercise was "primarily an objective one by
reference to size". Adopting what he understood to be the reasoning of Deputy
Judge Christopher Lockhart-Mummery QC in Surrey Homes Limited v Secretary
of State for Environment (unreported) CO/1273/2000, BAILII: [2000] EWHC 633 (Admin), he said:
"Which physical dimension is most relevant for the purpose of
assessing the relative size of the existing and replacement dwellinghouse,
will depend on the circumstances of the particular case. It may be floor
space, footprint, built volume, height, width, etc. But, as Mr
Lockhart-Mummery said in Surrey Homes:
' ..... In most cases floor space will undoubtedly be the
starting point, if indeed it is not the most important
criterion.'
It is one thing to say that in a case where the increase in
dimensions is marginal in quantitative terms, some regard may be had to
other matters 'such as bulk, height, mass and prominence'; it is quite
another thing to set consideration of the physical increase in size to one
side altogether, and, in effect, to substitute a test such as 'providing the
new dwelling is not more visually intrusive than the dwelling it replaces'
for the test in paragraph 3.6: 'providing the new dwelling is not materially
larger than the dwelling it replaces.'
Paragraph 3.6 is concerned with the size of the replacement
dwelling, not with its visual impact…"
- Applying this approach to the facts of the present
case he said (para 24-5):
"Since the exercise is primarily an objective one by reference
to size rather than visual impact, the replacement dwelling is 'plainly
materially' larger than the existing dwelling….
… looking simply at the replacement building, it was, depending
on whether one measured footprint, floor space or volume, between two and
four times as large as the existing dwelling. This increase in size was so
substantial that there could be no doubt whatsoever that the replacement
dwelling was 'materially larger' than the dwelling it was to replace. The
only way in which one could come to a contrary conclusion would be to set
aside all measurements and approach the question 'is the replacement
dwelling materially larger than the existing dwelling?' solely by reference
to a qualitative judgment as to its visual impact. That was the erroneous
approach that was adopted in the officer's report and subsequent advice to
the committee."
The Surrey Homes case
- Mr Elvin contended that the judge was wrong to
think that his approach was consistent with reasoning in Surrey Homes
, BAILII: [2000] EWHC 633 (Admin), and that the latter is to be preferred. To examine that contention it is
necessary to consider the decision in that case in a little more detail.
- The case concerned the refusal of permission, on
appeal, for a replacement dwelling in the Green Belt. The new building would
be larger by only 7.9 per cent than the existing, and it was accepted that "in
purely floor space terms", there would not be a material increase. The Council
argued that floor space was not the only factor, but that "bulk and massing"
were also important. The inspector directed himself (following an earlier
decision) that it was reasonable to "assess the term in the context of what
Green Belt policies are seeking to achieve" and that accordingly a replacement
buildings should be regarded as "materially larger" –
"if it would conflict with those statements of policy, rather
than by any quantitative criteria" (para 13).
- Applying that approach, he considered that the
proposal failed the test. The new building would have "a much more bulky
form"; its greater height would make it appear "far larger in terms of bulk
and massing than the existing building", an impression which would be
"accentuated" by its location. It would be "very large by any standards", and
would have "a far greater prominence in the street scene" than the existing
building; and its effect would be "to reduce the openness of the Green Belt in
this location" (para 16).
- The judge was faced with the (to my mind) extreme
submission that the term "materially larger" was to be judged "exclusively" by
reference to "floor space", so that such matters as height, bulk and massing,
and positioning on the site, were irrelevant. Not surprisingly, be rejected
that submission:
"In most cases floor space will undoubtedly be the starting
point, if indeed it is not the most important criterion."
But I entertain no doubt that the concept of whether the
dwelling is 'materially larger' can be assessed by reference to matters such
as bulk, height, mass and prominence. These are all matters going to the
openness of the Green Belt. They are plainly all material considerations
relevant to deciding on the meaning of the term in the context in which it
arises, namely Green Belt policy.
Indeed, were it otherwise, absurd results could arise. One could
have equivalent or possibly even reduced floor space, but disposed within a
tower-like structure, having far more impact on the Green Belt. It would
give a strange result, in my judgment, if an inspector were debarred from
concluding that the proposed structure harmed openness and was inappropriate
development." (para 23-3)
- That decision seems to me with respect undoubtedly
right, but it is of little help in the present case. In that case it was held
that a small increase in floor space in absolute terms could be judged
"material" in planning terms, because of the design of the building and its
position on the site. The converse does not necessarily follow. The case is no
authority for the proposition that design and location can procure the result
that a very large increase in absolute terms, as here, is to be treated
as "not material".
The officer's report
- Before coming back to the interpretation of the
policy, it is helpful to consider how the officer dealt with the issue.
- Her first reference to MOL policy comes under the
heading "Residential Use" (para 6.4) where she states:
"The replacement single-family dwellinghouse raises no land use
policy issues. Where existing dwellings do occur in MOL, it seems right to
acknowledge that extensions etc, may be appropriate, and this is
specifically referred to in PPG 2 on Green Belts. This guidance in paragraph
3.6 specifically states: [the guidance is then set out]. The proposed
residential use and its limited extension in size are therefore considered
to be appropriate. This is further discussed in paragraph 6.8
below..."
Under the same "residential use" heading, she notes also that in terms of
habitable rooms there would be only "a marginal increase in density", which
was acceptable under housing policies.
- There is then a separate section dealing with
"Bulk, height, footprint and layout" (para 6.5). This contains no specific
reference to MOL policy. She accepts that "the overall size and bulk of the
front elevation visible from the pond" would be greater than the existing
front elevation. However, earthworks on the pond side would result in the
basement storey and the part of the ground floor being obscured from views
across the pond. Most of the increased bulk would be directed towards the rear
of the site, and which is "not visible from the public realm". The increased
footprint would cover part of the existing hard surface and raised terracing,
and "would not result in a material loss of front garden space". The new
building would appear from the pond as –
"… an essential 2-storey flat roofed building, located to the
rear of the site and partially screened by greenery".
- She concludes on this aspect (para 6.5.6):
"On balance, it is considered that, in the light of the existing
part 1, part 2-storey pitched roof building, the proposed massing and bulk
of the new building together with its form and design in the sensitive
location, would not cause demonstrable harm to the character and appearance
of this part of Hampstead Conservation Area."
- The report next deals with "Design" and "Impact on
Hampstead Conservation Area and the Heath". On the latter, she concludes that
"the perception of a greater mass of building bulk in respect of the front
elevation" would not "seriously harm" views from the fringes of the Heath or
its setting; and that the green roof would assist in assimilating the new
building into the natural setting in this view.
- The next section (para 6.8) deals with
"Development on Metropolitan Open Land and Private Open Space". Having
commented on the purposes of the MOL designation, and the general need to
protect openness, she notes that "residential extensions/alterations" may be
appropriate development if "they would not result in a significant (sic)
increase in size of the original dwelling" (referring to Policy N1). She
continues (para 6.8.4-5):
"The MOL in question is the private garden of the existing
residential property, which is not available to the public for general
enjoyment and recreation. The contribution that this private garden makes to
the MOL as a whole is not considered to change as a result of the proposed
replacement scheme, although the footprint of the new building will result
in a minor decrease in the area designated MOL (i.e. the existing building
occupies less MOL). However, it is considered that the enlarged footprint of
the proposed dwelling is largely achieved towards the rear of the site and,
as this will not be visible from the ponds, it is considered that this will
only have a minimal impact on the character and setting of the MOL and the
Heath. The replacement house is not considered to cause demonstrable harm to
the existing openness or setting of the site and the surrounding land, or to
the nature and form of development and land uses in the vicinity of the MOL.
The proposed house is not considered to alter the balance between built and
open space and, on balance, the proposed replacement house on MOL & POS
is therefore considered acceptable.
On balance, it is considered that the extent of the 'loss' of
MOL is not significant and it will not harm the integrity of the MOL nor
result in demonstrable harm to the character and appearance of the Heath at
Hampstead Conservation Area."
- In her final Conclusion (para 7.1), she considers
that on balance the proposal complies with the relevant policies. There is no
specific reference to MOL policy, but I take that as encompassed in her first
sentence:
"There is no objection in principle to the replacement of the
existing 4-bedroom dwellinghouse with a 5-bedroom dwellinghouse."
The remainder of the concluding paragraph summarises her views on the
design and the limited impact on the surroundings and adjacent occupiers
(without reference to MOL policy as such), leading to her recommendation to
approve.
- We were rightly urged not to read the report like
a statute (see South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, para 36, per Lord Simon Brown). I also bear in mind that we
are focussing, with the spectacles of hindsight, on one particular issue of
many. However, it is noteworthy that, in an otherwise admirably clear and
comprehensive report, her treatment of the MOL issue is at best incomplete. In
the body of the report, MOL policy is referred to in only two places, first in
relation to residential use, secondly in a passage leading to a conclusion
about "loss" of MOL. Inferentially, one may add the "Conclusion", where again
the emphasis is on the limited extension of residential use. It is striking
that nowhere does she ask or answer the critical question whether the
replacement building would be "materially larger".
- I would not attach great weight to the fact that
she misstates the relevant policy criterion, by substituting the word
"significant" for "material". In most contexts, there may well be no real
difference. The problem is that in the report she never answers the relevant
question in either form.
Discussion
- Mr Elvin's case can be simply and attractively
stated. The word "material" is deeply embedded in planning law as meaning
"material in planning terms". It is a settled principle that matters of
planning judgment, including the weight if any to be given to "material"
considerations are for the local planning authority not the courts (see Lord
Hoffmann's discussion of "Materiality and planning merits" in Tesco Stores
v Secretary of State [1995] 1 WLR 759 para 13). The authority correctly
identified the increased size of the building, in all its aspects, as a
relevant consideration in accordance with the MOL policy, but they decided
that on the facts of the case it was not "material". That was a judgment for
them, and involves no issue of law justifying the intervention of the court.
- Although I see the force of that submission, it
ignores the context in which the word is used. The words "materially larger"
in paragraph 3.6 should not be read in isolation. There are two important
aspects of the context. First is that paragraph 3.6 is concerned with the
definition of "appropriate development", as contrasted with inappropriate
development, which is "by definition harmful to the Green Belt" (see para 8
above). This first stage of the analysis is concerned principally with
categorisation rather than individual assessment.
- As Mr Elvin points out, the distinction is far
from clear-cut. He is able to point, for example, to the sports and cemeteries
category (see para 8 above), where one part of the test is whether the
particular uses "preserve the openness of the Green Belt" and "do not conflict
with the purposes of including land in it". Even more pertinent, perhaps, is
the category of "redevelopment of major existing developed sites". There
"appropriateness" depends on meeting the criteria set out in Annex C1 para C4,
including a requirement that redevelopment should –
"… have no greater impact than the existing development on the
openness of the Green Belt and the purposes of including land in it".
To my mind, however, those examples point a contrast with the narrower
language of paragraph 3.6. The test is whether the replacement is "materially
larger". Had it been intended to make appropriateness dependent on a broad "no
greater impact" test, as in Annex C1, the same words could have been used.
Instead the emphasis is on relative size, not relative visual impact.
- That leads to the second aspect of the context,
which is that of paragraph 3.6 itself. It is part of the test for a category
which covers "limited extension, alteration or replacement…" "Limited" to my
mind implies a limitation of size. Paragraph 3.6 deals with both extension and
replacement. An extension must be "proportionate" to the size of "the
original building". The emphasis given to the word "original" shows how
tightly this is intended to be drawn, in order presumably to avoid a gradual
accretion of extensions, each arguably "proportionate". It would be
impossible, in my view, to argue that "proportionate" in this context is
unrelated to relative size. For example, an extension three times the size of
the original, however beautifully and unobtrusively designed, could not, in my
view, be regarded as "proportionate" in the ordinary sense of that word.
- The words "replacement" and "not materially
larger" must be read together and in the same context. So read, I do not think
that the meaning of the word "material", notwithstanding its use in planning
law more generally, can bear the weight which the authority sought to give it.
Size as Sullivan J said is the primary test. The general intention is that the
new building should be similar in scale to that which it replaces. The
Surrey Homes case, BAILII: [2000] EWHC 633 (Admin), illustrates why some qualification to the word
"larger" is needed. A small increase may be significant or insignificant in
planning terms, depending on such matters as design, massing and disposition
on the site. The qualification provides the necessary flexibility to allow
planning judgment and common sense to play a part, and it is not a precise
formula. However, that flexibility does not justify stretching the word
"materially" to produce a different, much broader test. As has been seen,
where the authors of PPG2 intend a broader test, the intention is clearly
expressed.
Conclusion
- For these reasons, which are in line with those of
Sullivan J, I conclude that the council misunderstood and misapplied MOL
policy. Had they properly understood the policy, in my view, they could not
reasonably have concluded that a building more than twice as large as the
original (in terms of floor space, volume and footprint) was not "materially
larger".
- I would dismiss the appeal, and uphold the order
of the judge.
Lord Justice Sedley :
- I agree.
Lord Justice Waller :
- I also agree.