ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE STANLEY BURNTON
| Great Trippetts Estate Limited
|- and -
Secretary of State for Communities and Local Government
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Mr P Village QC and Mr Goodman (instructed by Messrs Beachcroft ) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Laws:
"The manège itself is located within what is called Hilly Field, which is several hundred metres to the north east of the main farm complex and separated from it by the grass slope of the field. The level surface had been created by recessing it into the hill side on three sides and raising the ground level on one side. It is rectilinear, surrounded by a close boarded fence over two metres high, the top of which is at what is new ground level where the manège has been cut most deeply into the hill side. It is about 100m long and 55m wide and has an artificial surface comprising a mixture of recycled materials and sand."
The new manège is in a different location from the earlier smaller one.
"In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty."
It is right, however, to notice, as Mr Village QC for the estate reminded us this morning, that AONBs first saw the light of day in 1949. See the National Parks and Access to the Countryside Act 1949 (section 5).
"Nationally designated areas comprising National Parks, the Broads, the New Forest Heritage Area and Areas of Outstanding Natural Beauty (AONB), have been confirmed by the Government as having the highest status of protection in relation to landscape and scenic beauty. The conservation of the natural beauty of the landscape and countryside should therefore be given great weight in planning policies and development control decisions in these areas."
"a) Development should not be permitted unless the natural beauty, distinctive character and remote and tranquil nature of the... (AONB) will be maintained and where possible enhanced. Development to meet proven local needs should be permitted provided that it is consistent with the purpose of AONB. Proposals for major development within AONB for any purpose should only be permitted in very exceptional circumstances and providing that they are consistent with national designation."
I interpolate that statement reflects what is in paragraph 22 of PPS7, which I have not read but to which Mr Village referred in the course of his submissions this morning.
" (b) Local plans will include policies to ensure that:
(i) within Areas of Outstanding Natural Beauty:
(ii) development is compatible with or enhances the distinctive character and quality of the landscape and that it is designed and sited to enhance visual quality and to minimise noise, light, or air pollution or disturbance... "
The closing words at (ii) are perhaps of particular importance having regard to the primary issue in the appeal.
The first ground of appeal
"The development is some distance from the nearest buildings, and appears isolated rather than an extension to existing development. The South Downs Integrated Landscape Character Assessment identifies as one of the landscape sensitivities of the area the irregular landscape mosaic of field, hedgerows, woodland blocks and shaws [wooded streams]. However, it is plain from the shape and design of the manège and its level surface that it is an artificial, rather than a natural, structure, failing to respect pre-existing ground levels, and these features together with the scale of the manège are at odds with the undulating landscape and the small-scale patchwork of irregular-shaped fields which are characteristic of this area. As a result, the manège appears poorly integrated and jars with the surrounding landscape. Consequently it fails to conserve the natural beauty of the landscape, and it does not maintain the character and distinctiveness of this part of the countryside."
Then the next two paragraphs are critical:
"41. The appellants propose a scheme of landscaping of the area immediately surrounding the manège and exercise track, to be the subject of a condition. I accept that in time this planting would conceal the manège from many close viewpoints. It clearly would not be effective for a number of years, and may not be wholly effective in preventing views of the manège from Footpath 3280, given the height of that viewpoint above the development.
42. However, even if the manège was entirely screened from view, that would not overcome the harmful effect of this substantial development on the character of the AONB. The purpose of landscaping is not to conceal a harmful development; this is an argument that could be used too often, leading to cumulative erosion of the landscape quality of the AONB. In this respect, I do not find the High Court decision in Burroughs Day v Bristol City Council  1 PLR 78 of assistance, as it is concerned with the interpretation of s55 of the 1990 Act, and not with the application of planning policy relating to AONBs. The benefits in general landscape and ecological terms of additional planting in this location would not, in my view, outweigh the harm to the natural beauty of the AONB caused by the manège."
"24. Visual harm is of course an important part of harm to an Area of Outstanding Natural Beauty. After all, the natural beauty lies in what is there, that is to say natural countryside. But its beauty may not be adversely affected if the development in question is such that it is not possible to see that there is any significant or harmful change to the natural appearance of the area in question. Thus, as it seems to me, the visual affect of any development is an important aspect to be taken into account in deciding whether there is indeed a failure to conserve or maintain the integrity of the AONB. But certainly the existence of the development in the terms that the Inspector has indicated is equally a factor that is material in deciding whether there is indeed in the particular circumstances harm. Mr Forsdick submits that, on a fair reading of paragraph 42, the Inspector is simply indicating that in this case the screening would not in her view mean that the harmful affect was overcome because of the nature of the development itself.
25. It seems to me that it is impossible to read the first two sentences of 42 as so limited. She is making the point that entire screening, once you have what is regarded as a development that is harmful in an AONB, cannot mean that that development can be acceptable. That, of course, would have a very important and general application which in my view is not justified I do not think that it is possible to say that the Inspector was simply limiting her observations to the nature of the development in that case."
"That is subject only to this qualification in the AONB approach: Mr Forsdick makes the point, and it is correct, that the harm that is relevant is the harm to the intrinsic nature of the AONB. Thus, whether or not it can be seen by the public or there is visual harm, does not of itself necessarily mean that it can be regarded as not being harmful to the intrinsic character of the countryside."
This theme is followed up in paragraph 24, which I have read. Mr Village says that paragraph 24 represents the correct approach to the issues arising in this case relating to the manège.
"The purpose of landscaping is not to conceal a harmful development."
"51. There is nothing in the planning and design statement provided with the planning application for the change of use, which also makes reference to the application for retention and extension of the permitted manege, to suggest that the smaller facility proposed at that time would be inadequate. Furthermore, although West Sussex has a concentration of polo-playing facilities, private or public, according to the evidence none of the other polo-playing establishments in the area have an arena of the type provided at Great Trippetts Estate. In my view it is not therefore implicit in the planning permission granted for the mixed use, with its significant restrictions, that there would be a need for such a facility.
52. The appellants have also argued that the manege is essential for the permitted equestrian use of Great Trippetts Estate. The planning permission for mixed use restricts the equine use to the occupiers of Great Trippetts Farmhouse and conditions restrict commercial uses and prohibit polo or horse jumping events or shows without the Council's consent. The polo facilities on the estate are used for practice and training horses and players, and the teams based at Great Trippetts Estate play competitively elsewhere. These teams play polo at all levels, including 'high goal', the highest, and the evidence indicates that the facilities that have been provided are of a very high standard.
53. The evidence of Mr Woodd was that the best polo teams cannot compete at the highest level without access to private training grounds of the type provided at Great Trippetts Estate, with 18 out of the top 20 teams having them. However, only 7 of those teams have a manège of the type provided here. I recognise the advantages for the Great Trippetts Estate teams in terms of training and bringing on large numbers of horses of having access to a large manège where they could be trained for speed and manoeuvrability, and it would also permit the playing of arena polo and preparation for snow polo tournaments abroad. I also acknowledge Mr Woodd's belief that in future years such a manège will be regarded as necessary for success at the highest level. However, I am not satisfied on the basis of the evidence before me that a facility of this size is essential in order to support high-goal polo teams, given that the majority of high-goal teams do not have them, although it may be desirable. Nor is it essential to enable the polo use at Great Trippetts Estate to continue."
"It seems to me that in her findings on need she has failed properly to recognise the need for the facility such as exists and, insofar as she has relied on its absence in other training grounds, that is a false comparison. Furthermore, the existence of screening and the fact that it would, so far as the eye was concerned, mean that there was no detriment apparently in visual terms to the AONB are highly material in deciding whether the harm was outweighed. It seems to me that the Inspector, once she decided that there was harm in the manner that she has indicated, has failed to take properly into account the way in which the screening can reduce that harm and in those circumstances has applied a standard to the harm which is altogether unjustifiable in the circumstances of this decision."
"The construction of the very large playing field at Kiln Field, just to the north of the manege and exercise track, has involved a significant amount of excavation to from the level surface, as a result of which a large terraced and grassed bank has also been formed along its southern edge. Not all of that bank appears to be within the site the subject of the planning permission. But nonetheless, although the bank is clearly visible at close quarters, and can be seen from footpath 3280, and whilst it does not reflect the characteristics of the surrounding landscape, it does not appear as obtrusive or incongruous as the manege because the grass covering allows it to blend to an extent into the landscape. I am not satisfied that the Council has been inconsistent in its approach to the two developments, or that the playing field forms a precedent that would justify allowing the manege."
"The exercise track runs around the perimeter of the manege, and appears to follow the natural contours of the ground for much of its extent, although I saw on my site visit that on the east side the track has been constructed on ground which has been raised over a metre above the natural ground level. It too has an artificial surface similar to that of the manege, although it appeared to be slightly darker in colouring. In views from Footpath 1178 there were glimpses of the rails and surface of the exercise track, but these did not stand out, and if the manege had not been there it would probably have been inconspicuous. Once the trees are in leaf, as with the manege, I doubt that the exercise track would be visible from this footpath. When seen from Footpath 3280 the exercise track is much less obtrusive than the manege and blends more into the landscape. In these public views, I consider that the impact of the exercise track is slight and that it does not look out of place, given the approved uses of Great Trippetts Estate.
58. The exercise track is also clearly visible from close to. However, in the main it follows the natural contours, and although the dark-coloured plastic rails were visible from a distance when they caught the sun they were otherwise unobtrusive, as were the track's surface, post and rail fence and the low boards which in places mark its edge. The track is not dissimilar in appearance to tracks in the ground surface formed by the frequent exercising of horses, and so does not appear out of place. Even though it has been constructed partly on recontoured ground, this area of recontouring is not obtrusive because of its limited extent and because it is so close to the hedgerow which forms the field boundary. Subject to the provision of suitable planting the exercise track and its railings, post and rail fence and timber boards would be reasonably well integrated into the landscape, and would conserve and not harm the natural beauty of the AONB."
"17. The tennis court is not visible from any public viewpoint. In fact, the areas from which the tennis court surface and retaining wall can be seen are limited to a small area immediately adjoining the court itself. The netting surrounding the tennis court can be seen from a somewhat wider area, including the tennis court can be seen from a somewhat wider area, including the private track running from the farm to Canhouse Cottage, but because of its dark colour it tends to blend in with the backdrop of trees and hedges, and is not particularly obtrusive.
18. However, when seen from close quarters it is quite clear that the character and appearance of this part of the field has now changed significantly as a result of the substantial engineering works that have been carried out. What was a countryside sloping down to the stream is now a recontoured area containing a significantly engineered artificial structure in the form of the tennis court and its surrounds. As a result the field has a very different character from the remaining part of the field, being now far less rural, with through pasture shown on the aerial photographs being replaced by the tennis court and manicured grass and appearing to be part of the garden of the farmhouse rather than part of the countryside.
19. The development has led to the creation of an unnatural structure in the form of the tennis court with its retaining walls and terraced sides, as well as leading to a significant change in the natural landform. The artificial nature of the tennis court and its retaining walls and recontoured surrounds is incongruous and jars with the surrounding landscape and detracts from the rural character and appearance of the reminder of the field and the natural environment and beauty of the area. I do not agree with the appellants that the limited area of visibility of the tennis court means that there is no adverse impact at all; if this were the case, tennis courts could be constructed anywhere in the countryside in similar circumstances, detracting cumulatively from and ultimately seriously detracting from rural and countryside character over a large area.
20. The appellants have proposed a landscaping scheme, which would further conceal the tennis court from view, particularly outside the winter months. However, this would not alter the essential change of character that has taken place. Indeed, even if the tree planting proposed did not include the suggested fruit trees, it would result in an area with the character of a garden extension, not only in the immediate environs of the tennis court but also on the land between the tennis court and the track. This would reinforce and extend the change from rural to domestic character over a relatively substantial area of land, thus consolidating rather than mitigating the harm that I have identified above."
Lord Justice Longmore :
Lord Justice Stanley Burnton :
Order: Appeal granted; cross-appeal dismissed