England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Miss Belinda Bucknall QC
CO/5640/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th February 2014

Lord Justice Patten :

1. Green Belt policy has been a central feature of town and country planning since its inception. It was proposed as a planning objective more than ten years before the Town and Country Planning Act 1947 came into effect with provisions for compensation which enabled local authorities to include Green Belt in their first development plans. Circular guidance on Green Belt policy first appeared in 1955 and in relation to this appeal is now contained in Planning Policy Guidance Note 2: Green Belts ("PPG2") issued in 1992. This has now been superseded by the National Planning Policy Framework published in 2012.
2. So far as material, PPG2 states:

"Intentions of policy

1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness ...

Purposes of including land in Green Belts

1.5 There are five purposes of including land in Green Belts:

to check the unrestricted sprawl of large built-up areas;

to prevent neighbouring towns from merging into one another;

to assist in safeguarding the countryside from encroachment

to preserve the setting and special character of historic towns; and

to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.

The use of land in Green Belts

1.6 Once Green Belts have been defined, the use of land in them has a positive role to play in fulfilling the following objectives:

to provide opportunities for access to the open countryside for the urban population;

to provide opportunities for outdoor sport and outdoor recreation near urban areas;

to retain attractive landscapes and enhance landscapes, near to where people live;

to improve damaged and derelict land around towns;

to secure nature conservation interest; and

to retain land in agricultural, forestry and related uses.

1.7 The extent to which the use of land fulfils these objectives is however not itself a material factor in the inclusion of land within a Green Belt, or in its continued protection. For example although Green Belts often contain areas of attractive landscape, the quality of the landscape is not relevant to the inclusion of land within a Green Belt or to its continued protection. The purposes of including land in Green Belts are of paramount importance to their continued protection and should take precedence over the land use objectives.

…..

3. Control over development

Presumption against inappropriate development

3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.

3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

.....

New buildings

3.4 The construction of buildings inside a Green Belt is inappropriate unless it is for the following purposes:

.....

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 (see paragraph 3.5 below);

......

.....

.....

3.5 Essential facilities (see second indent of paragraph 3.4) should be genuinely required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. Possible examples of such facilities include small changing rooms or unobtrusive spectator accommodation for outdoor sport, or small stables for outdoor sport and outdoor recreation.

...

Mining operations, and other development

3.11 …..

3.12 The statutory definition of development includes ….. the making of any material change in the use of land. The carrying out of such operations and the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt.

…..

Visual amenity

3.15 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."

3. This appeal concerns four enforcement notices served by East Dorset District Council ("the Council") in respect of the use of land at Bedborough Farm, Uddens Drive, Wimborne, Dorset ("the Farm") for paintballing and what is described as livery/DIY livery together with various structures and other equipment placed on the land in connection with paintballing. The Council served eight enforcement notices in all but on appeal the Inspector (Ms Sara Morgan) quashed three of the notices and granted planning permission for the construction of a manège and the temporary use of a barn for storage of plant and other equipment used in connection with a landscaping business. There was no appeal against the eighth notice.
4. The four notices which were upheld on appeal related to:

(1) Notice A: the unauthorised use of land for paintballing activities;

(2) Notice B: the unauthorised erection of wooden structures, barriers and obstacles and the positioning of wooden crates to act as barriers and obstacles connected with the use of land for paintballing;

(3) Notice E: the unauthorised erection of barriers and obstacles constructed of wooden sheets and uncut tree wood and the positioning of metal barrels and plastic water storage containers associated with a paintball use; and

(4) Notice F: the unauthorised use of the land for livery/DIY livery.

5. The claimant, Newlyn Dean & Sons Limited, appealed under s.289 of the Town and Country Planning Act 1990 against the dismissal by the Secretary of State of its appeals against Notices A, B, E and F. It challenged the Inspector's decision on four main grounds:

(1) the Inspector had adopted a wrong and therefore unlawful interpretation of PPG2 in deciding that the use of the land for paintballing and livery purposes constituted inappropriate development;

(2) her conclusions on the visual impact of the paintballing equipment were either (a) based on her wrong interpretation of PPG2 or (b) irrational and unfairly reached;

(3) her conclusion that livery use was inappropriate development was irrational and she was wrong in particular to decide that the continued use of the manège by livery users could not be guaranteed by the imposition of a planning condition; and

(4) since the Council had not contended for such a condition at the inquiry, it was also procedurally unfair for her to have decided that a planning condition would not be enforceable without giving the claimant an opportunity to comment.

6. The judge (Miss Belinda Bucknall QC) rejected all these grounds of appeal ([2012] EWHC 2909 (Admin)) and the claimant now appeals on all four grounds with the leave of this court.

Ground 1: Green Belt

7. The question of whether the Inspector misconstrued PPG2 centres on her determination that the change in the use of the land to paintballing and livery amounted to inappropriate development within [3.1] of PPG2. It is not contended that the claimant did or can make out very special circumstances to justify the grant of planning permission if the presumption against inappropriate development applies.
8. In relation to the change of use to paintballing, the Inspector addressed the issue of inappropriate development in [20]-[26] of the decision letter in these terms:

"20. The main issues are (1) whether in respect of each notice, the development amounts to inappropriate development in the Green Belt ...

21. Notice A relates to the change of use of part of the land at Bedborough Farm to use for paintball activities. Notices B and E relate to operational development comprising the erection of structures, barriers and obstacles made from a variety of materials, used in order to facilitate the paintball activities.

22. The paintballing activities are a form of outdoor recreation, and in principle outdoor recreation need not be inappropriate in the Green Belt provided it maintains openness (there is then a footnote which states "In this regard, it should be noted that effect on visual amenity is not the same as effect on openness in Green Belt terms.") and does not conflict with the purposes of including land in the Green Belt (paragraph 3.12 of PPG2). But the nature of the paintballing activities, which involve teams competing to capture flags or locations, appears to require obstacles to provide cover for the warring teams. Certainly, both of the companies which have used this land for paintballing since the use started have used various types of obstacles and barriers.

23. The structures, barriers and obstacles referred to in the Appeal B and E notices appear substantial and because of their solidity and their numbers they would have materially reduced the openness of the Green Belt. Some of the photographs provided to the Inquiry show what appears to be removable obstacles and barriers formed partly of camouflage netting, which would also detract from openness even on a temporary basis. In addition, the stationing of the caravan and trestle tables and the parking of vehicles in connection with the paintballing use would all tend to reduce openness. Although the parking of vehicles would only affect openness when the paintballing activity was operating, the appellants seeks permission to use the site for up to 60 days in any year, which is significantly more than the number of days on which paintball activities would be permitted under the Town and Country Planning (General Permitted Development) Order 1995.

24. Even the reduced number and size of obstacles present on the site at the time of my visit (around 35 not exceeding 3m long and 1m high) (and then there is another footnote which records that the appellants sought permission for a maximum of 40 such obstacles) as a matter of fact and degree have an impact on openness which is more than minimal (although those in the woodland area would have only a limited visual impact). Because of the nature of the paintballing activity, even if no permanent obstacles or barriers were proposed (and that is not the basis on which permission is being sought under the deemed planning application) it is highly probable that temporary structures would be scattered across the playing area for the time the activities took place (and here there is a footnote reference to the evidence that in addition to the fixed obstacles for which permission is sought there would be other obstacles which would be moved in and out of storage as required.) This would also materially impact on openness. Consequently, I conclude that because the paintball use does not maintain openness it is inappropriate in the Green Belt.

25. Paragraph 3.4 of PPG2 indicates that the construction of new buildings inside the Green Belt is inappropriate unless for a number of restricted purposes. It recognizes that essential facilities for outdoor recreation may not be inappropriate, but only if they are genuinely required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. The paintballing use, as indicated above, has materially impacted on openness. For this reason even if they could be argued to be essential facilities, the structures are inappropriate.

26. One of the objectives mentioned in paragraph 1.6 of PPG2 is the provision of opportunities for outdoor sport and recreation near urban areas. However, leaving aside whether this site could be described as being near the urban area, the fact that the paintballing activity might fulfil this objective does not override the advice elsewhere in PPG2 relating to inappropriate development."

9. In relation to the livery use, she said:

"50. The livery use notice includes both open land and a former agricultural barn, as well as a number of animal pens or stables forming part of the original farm yard. Applying the advice in paragraph 3.12 of PPG 2, the use of the land for keeping horses would not by itself necessarily harm openness or conflict with the purposes of including land in the Green Belt.

51. However, in addition to the keeping of horses, it is clear from the evidence that most of those who visit the site to care for the horses travel by motor vehicle, and in addition lorries and trailers are also kept on the land from time to time. The plan accompanying a planning application in 2008 for the retention of the livery and manège showed parking for four cars and four horse lorries or trailers (although there is room on the site for parking of a larger number of vehicles), and photographs taken in January 2010 show three large horse lorries and one trailer parked on land adjoining the former agricultural barn.

52. In my opinion, the level of parking shown in the 2008 application would materially reduce openness. There would in any event be no practical means of control of the number of vehicles, including large horse lorries, that would be parked on the land in connection with the livery use. The appellants seek planning permission under the deemed planning application for the keeping of up to 30 horses on the land, and the parking to which this is likely to give rise would materially reduce openness, even though the visual impact of this parking might be limited because it would be located close to the CLU land where there is already open storage.

53. Furthermore, it is clear from the evidence that, from time to time, horse shelters have been placed on the land in connection with the livery use (although most have now been removed), and these have also reduced openness. Any shelters constituting operational development would require planning permission. But any mobile shelters not constituting operational development would not be subject to such control. As there are not enough stables on the site to provide shelter for all of the horses that might be brought on the land, some other forms of shelter would be likely to be necessary which would also materially impact on openness.

54. My conclusion is that the livery use of the land, because of the parking which it has generated, as well as the likelihood that horse shelters would be needed, has not maintained openness and therefore is inappropriate development in the Green Belt."

10. The livery use included in Notice F extends to an existing agricultural barn. The Inspector considered that even if the livery use was confined to the barn and no other buildings, 12 horses with 12 separate owners would generate sufficient associated parking of cars and trailers as to materially impact on the openness of the land. She therefore reached the same conclusions on inappropriate development in relation to the use of the buildings.
11. Mr Harwood QC for the claimant submits that these passages contain a material misdirection as to the meaning of [3] of PPG2 which therefore amounts to an error of law: see Tesco Stores Ltd v Dundee City Council [2012] UK SC 13.
12. He accepts that (as recorded in PPG2: [1.4]) the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open and that the most important attribute of Green Belts is their openness. But this, he says, does not require Green Belt to be maintained as a form of undeveloped wilderness. PPG2 makes it clear that one of the policy objectives of established Green Belt is its availability for outdoor sport and recreation [1.6]. Consistently with this, PPG2 [3.4] excludes new buildings from being treated as inappropriate development if constructed for certain specified purposes including:

"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 (see paragraph 3.5 below);"

13. Essential facilities are explained in PPG2 [3.5] as meaning essential facilities which are:

"genuinely required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. Possible examples of such facilities include small changing rooms or unobtrusive spectator accommodation for outdoor sport, or small stables for outdoor sport and outdoor recreation."

14. Mr Harwood stresses that [3.5] is concerned to describe what are referred to in the guidance as "essential" facilities. It is therefore to be read subject to [3.4] and the reference in it to "uses of land which preserve etc…" merely reflects the fact that in the second indent of [3.4] (as throughout [3.4]) all the land uses referred to are ones which in policy terms justify planning permission for the construction of the type of new buildings referred to being considered without the need to show special circumstances.
15. It is clear from the adjectives used in the second sentence of [3.5] that these facilities should not only be essential in the sense of required for the purposes of the outdoor activity in question but should also be of a very limited size which is consistent with the application of the criterion of openness to all the land uses specified in the second indent of [3.4]. On this basis, one would expect the assessment of whether the structures involved in any proposed use of the land infringed (whether individually or collectively) the principle of openness to be a question of fact and judgment for the Inspector in each case. The Inspector's assessment in [23]-[24] of her decision letter that the paintballing equipment and associated parking would materially impact on openness was open to her on the evidence and cannot be described as irrational or perverse. The same applies to her conclusions on the effect of the livery use.
16. Permission has, however, been granted for a second appeal because Mr Harwood contends that the words "required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it" do not require to be satisfied by a factual assessment of those matters in relation to the use of the land for outdoor sport and recreation. He submits that in the second indent from [3.4] quoted above the words "preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it" qualify the words "and for other uses of land": that is uses apart from outdoor sport and outdoor recreation and for cemeteries. These latter uses are, he says, like agriculture and forestry, deemed to preserve the openness of the Green Belt so that the only requirement under [3.5] is that they should be limited in size and necessary for the outdoor sport and activities in question. The fact that they have the effect of reducing the openness of land within the Green Belt does not of itself make them or the land use inappropriate development any more than the erection of a new building on agricultural land under the first indent of [3.4].
17. Support for this as being the correct interpretation of PPG2 [3.4] is said to come from two sources. The first is the wording and punctuation of [3.4] itself. The placing of the comma after "cemeteries" is relied on as differentiating outdoor sport and the other specified uses from "other uses of the land" and the absence of any further comma is said to indicate that the words which follow ("which preserve the openness of the Green Belt" etc) refer only to "other uses of the land" and not to each of the uses within the paragraph. The second is the decision of Mr Robert Jay QC (as he then was) in Samuel Smith Ltd. v Secretary of State for Communities and Local Government [2009] EWHC 3238 (Admin).
18. That case concerned a new building which was erected in order to expand an existing equestrian business. It was conceded that the building constituted inappropriate development and the main issue between the landowner and the local planning authority was whether the owner had demonstrated very special circumstances justifying a grant of planning permission. After the service of enforcement notices the landowner appealed on the grounds that there were very special circumstances. The Inspector, however, later questioned whether the development was inappropriate but refused to re-open the inquiry to consider that issue. He then quashed the enforcement notices on the ground that the development was not inappropriate.
19. On appeal to the High Court it was common ground that the Inspector's decision should be quashed for procedural unfairness but the claimant also contended that the Inspector had erred in basing his finding about inappropriate development on a consideration of the whole planning unit. The claimant submitted that under the second indent in [3.4] of PPG2 the issue for the decision-maker was whether the essential facility preserves the openness of the Green Belt; not whether (as the Inspector decided) it was genuinely required for a use of the land which preserved the openness of the Green Belt and which did not conflict with the purposes of including land in it.
20. The deputy judge rejected the claimant's contention that the words beginning "which preserve the openness of the Green Belt" qualify "essential facilities" rather than the land uses which follow. He said:

"1.68 In my judgment, Mr Village's first core submission is not well founded. The requirement under para 3.5 of PPG2 is to demonstrate that this new building is an "essential facility for the use of the land as an Equestrian Centre which preserves the openness of the green belt etc". There is no additional requirement in PPG2 to show that the development could not take place elsewhere. As for Mr Village's second core submission, I was initially attracted by it but have been persuaded by Mr Maurici for the Defendant that it is incorrect. Outdoor sport and recreation and cemeteries are deemed to preserve the openness of the green belt. The issue in those cases is whether the facilities, as adjunct to such uses, are "essential" and "genuinely required". We are concerned with the residual category of case – "other uses of land which preserve" etc. The "other use" here is the Equestrian Centre use, and is a use which involves the entirety of this planning unit, in other words, the whole of the Hutchinsons' 10.5 hectares of land. That said, in my judgment, the Inspector erred at DL28 in his approach to the relevant question, namely, does the building in question preserve the openness of the green belt, etc? He answered this question solely by reference to the relative proportion of built land to the area of land as a whole. In my judgment, he should have considered whether this building, having regard to its size, relative location, building blocks, and appearance, and everything else, preserves the openness of the green belt."

21. It is not suggested on this appeal that Mr Jay was wrong to reject the argument that the claimant advanced on the construction of [3.4]. But Ms Busch for the Secretary of State does take issue with his statement that the specified land uses of outdoor sport and outdoor recreation together with cemeteries are deemed under the circular not to be inappropriate development. The statement was, of course, strictly obiter because the case which Mr Jay was considering involved another use of land to which the concluding words on any view apply. But Ms Busch submitted that the concluding words of the second indent of [3.4] conditions all of the uses there mentioned and not merely "other uses of land". That construction of [3.4] is not only consistent with the fundamental aims of Green Belt policy as set out in PPG [1.4-1.5] quoted earlier, but is also confirmed by [3.5] which refers to the same requirement of openness in relation to uses of land generally and makes no exception for outdoor sport or outdoor recreation.
22. The judge in this case came to the same conclusion and in my view was right to do so. The guidance contained in [3.4] does not in terms deem outdoor sport and recreation or cemeteries to be outside the categories of inappropriate development and it would be surprising for PPG2 to contain such advice if the purpose of Green Belt policy is to promote the objectives set out in [1.4-1.5]. Mr Harwood is correct to say that new buildings in connection with agriculture or forestry or in the form of limited infilling or extensions to existing dwellings do not constitute inappropriate development under [3.4] and that the same applies to essential facilities for the uses specified in the second indent. But outdoor sport and recreation may take many forms, some of which are likely to involve the construction of extensive facilities, all of which could properly be said to be genuinely required for that use of the land. There is therefore no obvious reason why the draftsman of the circular should have intended to limit the requirement to preserve openness to "other uses" and treated outdoor sport, outdoor recreation and cemeteries in the same way as agriculture and forestry. If that was his intention one might have expected the latter to be categorised separately. PPG2 [3.4-3.5] is concerned only with development in the form of new buildings which would be inappropriate but for being essential facilities for activities which are compatible with Green Belt designation under PPG2 [1.6]. But those objectives are necessarily expressed in general terms and it is clear from the last sentence of [1.7] that the basic aims of Green Belt policy take precedence over any other land use objectives.
23. As the judge herself remarked, the position of the commas in the second indent of [3.4] is not the most promising basis for interpreting planning guidance and the position of the commas is not in any event conclusive. The concluding words ("which preserve etc…") are not confined to "other uses of land" by the writer's decision to separate the categories of land use by punctuation. More importantly, however, when one reads on to [3.5] and [3.12] any ambiguities in expression disappear. PPG2 [3.5] is, as I have said, expressed in general terms and the second sentence makes it clear, I think, by its reference to "such" facilities including small changing rooms and stables that the requirement for openness in the first sentence applies to all the uses of land comprised in the second indent of [3.4]. This is consistent with the Inspector's interpretation of the guidance which was approved by the judge. Further confirmation is contained in the guidance in [3.12] on other development including the making of material changes in the use of land which provides expressly that such changes will constitute inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt.
24. Both Notice A and Notice F relate to material changes in the use of the land to which PPG2 [3.12] applies. Mr Harwood also accepted that although Notices B and E were served separately in relation to the structures and equipment used for paintballing, the erection of temporary structures of that kind can be regarded for planning purposes as part of the relevant change of use, although he submitted that PPG2 [3.4] had a dual application to both changes of use and to operational development in the form of new buildings and other permanent structures. Consistently with the guidance in [3.12], the Inspector was correct in my view to direct herself that the paintballing and livery uses had to preserve openness and was entitled to reach the conclusion that they did not. As regards the change of use of existing buildings in connection with livery use which was included in Notice F, the same principles apply. PPG2 [3.8] requires that the change of use should "not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it". The Inspector directed herself accordingly and her decision discloses no error of law.
25. Taken to its logical conclusion, Mr Harwood's suggested construction of PPG2 [3.4] would remove from the local planning authority any right to reject the proposed development as inappropriate based on the overall effect which the new structures would have even if the essential facilities required for the outdoor activity in question (as here) were multitudinous and widespread. The guidance at the end of [3.5] with its emphasis on small changing rooms or stables and unobtrusive spectator accommodation to my mind confirms the judge's view that a global assessment of the impact of the proposal on openness is required in every case.
26. If Mr Harwood is right in his submission that the second indent of [3.4] also applies to the structures on the land at the Farm and other equipment when considered as development in themselves, I would therefore also reject the claimant's challenge to Notices B and E.

Ground 2

27. The Inspector in [28]-[30] of her decision letter also considered whether the development would damage the rural character of the countryside so as to be impermissible under saved policy CSIDE1 of the East Dorset Local Plan. She said:

"28. The site is located in the countryside, and it is well outside any settlement. The paintball activity by itself would not harm the rural character of the countryside, provided no inappropriate barriers or obstacles whether fixed or temporary were involved. However, the structures against which Notices B and E are directed and which have now been removed were scattered about the site and had an appearance akin to haphazard storage. They were at odds with the rural character of the area, and harmed the visual amenities of the countryside, in conflict with policy CSIDE1. The paintball activity would also be likely to lead to the use of obstacles, whether temporary or not, which would also harm the rural character and visual amenities of the area because of their appearance of haphazard storage, also conflicting with policy CSIDE1.

29. The structures proposed to be retained and for which planning permission is sought are constructed of stakes and untrimmed logs, appearing similar to woodpiles, albeit draped with camouflage netting. They did not appear to be visible from public viewpoints. They do not stand out as particularly obtrusive features, do not significantly undermine either the rural character or the visual amenity of the area, and do not conflict with policy CSIDE1.

30. The caravan, picnic tables and car parking are all sited close to a large storage building and only have a minimal effect on rural character because of their location close to this building. Their visual impact is also limited because they are effectively sited between the building and a hedge, and although cars parked in this area would not be completely hidden from views from public rights of way, as I saw on my unaccompanied visit, their effect on rural character and visual amenities is limited. As small scale developments ancillary to outdoor recreational use which are reasonably unobtrusively located, they do not conflict with policy CSIDE1."

28. These adverse conclusions are challenged as being based on the Inspector's erroneous view about Green Belt policy. Her conclusions are also said to be irrational and unfairly reached. As developed before us, this proved to be an alternative way of saying that her decision on the planning merits was heavily dependant upon her conclusions on Green Belt policy. On that basis, it adds nothing to Ground 1 and should be dismissed for the same reasons. But if her assessment of the planning merits is being challenged more generally then I reject it. The Inspector visited the site and was best equipped to make the necessary assessment. She is the judge of the planning merits. Absent a misdirection or perversity in the decision, this court cannot interfere.

Grounds 3 and 4

29. The final two grounds of appeal concern the use of the land for livery. The appeal site is about 1.5 km (by track) from the Dorset Heathlands Special Area of Conservation ("SAC"). This is traversed by public bridleways which remain open to use by riders despite the special status of the site which is managed by Natural England. There have been no applications made to the County Council as highway authority to close or divert bridle rights across the SAC.
30. It was common ground at the inquiry that horse riding causes harm to the SAC. The SAC is a European site for the purposes of the Habitats and Species Regulations 2010. Regulation 61(1) provides:

"A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—

(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of that site,

must make an appropriate assessment of the implications for that site in view of that site's conservation objectives."

31. The Inspector is a competent authority for the purposes of these regulations and may only give approval to a project to which regulation 61(1) applies if "it will not adversely affect the integrity of the European site": see regulation 61(5). Regulation 61(6) provides that:

"In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."

32. It emerged at the inquiry that limiting the livery use to 12 horses would prevent serious harm to the SAC. This was confirmed in cross-examination by a representative of Natural England who gave evidence on behalf of the District Council. The Inspector therefore considered whether a restriction to 12 horses could be achieved by the imposition of a suitable planning condition. The claimant had proposed two conditions relevant to its application for planning permission for livery use:

(i) a condition limiting the livery use to 12 stabled horses and 18 non-hacking, grazing horses; and

(ii) a condition requiring any person stabling or grazing a horse on the land to sign an agreement that he would not ride the horse on the SAC.

33. The Inspector took the view that it would not be possible effectively to control the use of the SAC by riders through the imposition of the second of these proposed planning conditions:

"72. The appellants also propose a condition requiring them to ensure that the livery and horse grazing does not result in an increase in horse traffic on Whitesheet Plantation or Holt Heath and also requiring them to impose agreements to that effect on any person using the stabling or grazing facilities. My concern about this is the practicability and enforceability, particularly in the long term, of such a restriction: the condition suggested by the appellants would require them to enforce such a restriction, without providing a mechanism for the Council to enforce it other than against the appellants.

73. I do not doubt the intentions of the appellants in this regard, but I am not satisfied that, even with the mechanisms proposed such as the wearing of bibs identifying the site (although they are not referred to in the proposed condition), such a condition would provide the necessary degree of certainty in the future that riders from the site would not go onto the protected areas. It would be entirely dependent on the appellants (or subsequent owners of the site) enforcing these restrictions, and effective monitoring of compliance would be very difficult if not impossible, particularly bearing in mind that horse riding is a leisure activity which would often take place outside normal working hours. I cannot be satisfied in these circumstances that such a condition would provide the necessary degree of confidence."

34. There is no challenge to these conclusions. Mr Kite of Natural England had also said that if the livery use was limited to 12 stabled horses the combination of grazing land plus the manège would be of a sufficient quality to attract horses which were not likely to be exercised on the SAC. But the Inspector said that she must also take into account the fact that the application includes permission for up to 18 other grazing horses which would not be stabled and that it would be difficult for the Council to monitor and enforce any planning condition that they should not be taken off the site.
35. She also expressed doubt about Mr Kite's acceptance that livery limited to 12 stabled horses was likely to discourage riding over the SAC:

"78. I have considered whether, notwithstanding the numbers of horses for which approval is sought by the appellants, it would be appropriate to grant planning permission for livery limited to 12 stabled horses only, having regard to Mr Kite's evidence that such a limit, together with the presence of the manège, would provide reasonable confidence that the numbers of horses from the site riding onto the heath would be very low. However, the difficulty as I envisage it would be to ensure that the manège would remain available for use by all horses on the site for as long as the livery continued. No condition to this effect was put before me, and in any event I am not satisfied that this is something that could be achieved in an enforceable way by condition. Without the availability of the manège for all the horses kept on site being guaranteed in the long-term, I cannot have that reasonable confidence. I also have to bear in mind the test set down in Waddenzee, which requires me to be certain that the development will not adversely affect the integrity of the heaths."

36. Mr Harwood submitted to the judge on the first appeal that a condition could be drafted requiring that the manège be made available for use by all horses which are kept at the livery stables. But this was not a condition which the Inspector was asked to consider nor did she hear any argument or evidence about it.
37. Mr Harwood submits that there was procedural unfairness in the Inspector's decision that the problem about riding on the SAC could not be cured by suitable planning conditions. Mr Kite did not suggest at the inquiry that a condition was required in respect of keeping the manège available for livery users and the claimant's evidence was that the manège was an essential adjunct to the livery operation and that very few horse owners could be expected to make use of the livery facilities without it. Since the use and effectiveness of a condition was not raised by the Council and therefore addressed by the claimant, it was wrong, Mr Harwood submits, for the Inspector to have relied on it as the basis of her conclusion that livery use is likely to have significant effects on the SAC. She should have given the claimant either at or after the inquiry an opportunity to address the question of whether the continued availability of the manège to livery users could be guaranteed by a planning condition or other mechanism.
38. Given the conclusions I have reached on grounds 1 and 2, the issues raised by grounds 3 and 4 have become academic and it is not, I think, necessary for us to express any concluded view upon them. The Inspector, as I have said, was not asked to consider the condition now proposed; heard no argument on the point; and in part based her conclusions in [78] of the decision letter on the fact that the claimant had not proposed a condition of the kind now under discussion. The views she expressed about enforceability were to that extent hypothetical. In these circumstances, I prefer to express no view about the correctness of her conclusions as to the effectiveness of any such condition or whether her decision was procedurally unfair. A decision on whether such a condition would meet the Council's legitimate concerns about the use of the SAC is a matter to be determined as and when it arises.

Conclusion

39. I would therefore dismiss the appeal.

Lord Justice Lewison :

40. I agree.

Lady Justice Sharp :

41. I also agree.