COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
MR JUSTICE SULLIVAN
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE SEDLEY
LORD JUSTICE CARNWATH
|The Queen on the Application of Heath
& Hampstead Society
|- and -
|Messrs Alex and Thalis
||First and Second
|- and -
|London Borough of
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
Crown Copyright ©
Carnwath LJ :
"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 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 ..... "
Green Belt and MOL policy
"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 .....;"
"- 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."
"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."
"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.
"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. "
"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."
The judgment below
"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…"
"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
"if it would conflict with those statements of policy, rather than by any quantitative criteria" (para 13).
"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)
The officer's report
"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.
"… an essential 2-storey flat roofed building, located to the rear of the site and partially screened by greenery".
"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 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."
"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.
"… 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.
Lord Justice Sedley :
Lord Justice Waller :