QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NEWSMITH|
|SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT|
|AND THE REGIONS|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR J LITTON (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Crown Copyright ©
Thursday, 1st February 2001
"...there was no general rule that a party to a planning appeal was to be prevented from raising, in a challenge to that decision, an argument that had not been advanced in representations made on the appeal. If the inspector had omitted a material consideration, the decision could be unlawful, notwithstanding that the matter had not been raised in representations."
"To the north, west and south of the site there is open agricultural land, which generally slopes down from north to south and is predominantly used for grazing. The M62 passes nearby to the east, and a motorway service area abuts the appeal site on this side."
"...whether the proposal would be prejudicial to the objectives of Green Belt designation, taking into account any special circumstances involved in the proposal."
"Because of the generally open nature of much of the surrounding countryside, the existing buildings on the appeal site (together with some of the outside storage) are relatively prominent in the landscape. To some extent, longer distance views of the site from the west are constrained by land contours: to the east, the landscaping associated with the motorway service area also limits views of the appeal site. However from other directions, particularly the north and south-east, the large buildings on the site are clearly visible across agricultural land, often from long distances. As a result, and because of their size and modern appearance, they stand out in what is otherwise a relatively unspoilt tract of open countryside."
"In my view, therefore, the appeal proposal would result in a far more intensive use of the site as a whole than at present, despite the non-traditional type of agricultural business currently undertaken here. I believe that use of the appeal site for industry would result in significant changes to both the appearance of the site and the amount of activity generated by it, and that these changes would be readily apparent in the wider landscape."
"In order to address these concerns, [that is to say the concerns raised in the 1992 appeal] the proposal now has a much reduced curtilage with parking and hardstanding areas confined to a yard which would be screened to a large extent by the existing buildings and fencing. In addition, some screen mounds have been formed in front of the main buildings so as to reduce the prominence of the buildings and screen the service road. It is also fair to say that the extensive tree planting that has been carried out in connection with the adjacent golf course has matured significantly since the appeal decision which has again helped to the make the buildings less prominent in the landscape generally.
There are also concerns about the impact of additional activity that would be generated but it is borne in mind that the access roads leading to the site are good, there is the motorway service area adjacent which itself generates activities over a 24 hour period and the golf course which again attracts a reasonable level of activity.
Taking all the above into account therefore, although there is some concern over the scale of the proposed development, it is not considered that material harm to the openness, character, function or visual amenity of this part of the Green Belt could be substantiated and, therefore, the proposal would not be considered to conflict with Green Belt policy."
"Whilst the road links to the site are considered to be reasonably good, there is concern about the limitations of public transport links to the site. Clearly, advice in PPG13 seeks to reduce reliance on car-borne travel although the most recent draft PPG13 also recognises that local authorities should also encourage sympathetic re-use of existing buildings for employment uses in rural areas."
"Given that the buildings are existing and there are policies which positively support their re-use, particularly from employment uses, that there are other commercial activities in the vicinity and that the former agricultural uses would also have generated a certain level of employment (albeit much less than proposed), it is considered that the concerns over accessibility in themselves are not sufficient to have justified refusal of the proposal..."
"It is concluded that although there are reservations concerning the scale of the development and accessibility issues, these would not be so substantial as to have justified a refusal of the application were it to have been determined..."
"Having read the representations and visited the appeal site and surroundings, [on an accompanied site visit on 30th August 2000] I consider the main issue in this case to be whether or not the appeal proposal constitutes appropriate development in the Green Belt and, if not, whether there are any very special circumstances sufficient to outweigh the consequent harm together with any other harm which may be identified."
"Policy N13 states that the Council will support the re-use and adaptation of buildings in Green Belt ... provided that they meet the following criteria... These include: (i) the form, bulk and general design of the buildings are in keeping with their surroundings or can be improved in their appearance to remove any adverse impact on the landscape; and (iii) the conversion does 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 or on the character of the countryside in general.
UDP Employment Policy E3 states that outside the Primary Employment Areas shown on the Proposals Map, where local job opportunities and accessibility to the Primary Employment Areas can be difficult, the Council will support proposals for appropriate new industrial or commercial development."
"Paragraph 3.8 states that the re-use of buildings inside a Green Belt is not inappropriate development subject to exceptions which include that a proposal does 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; and that the form, bulk and general design of the buildings are in keeping with their surroundings."
"The buildings are former cattle sheds measuring 1140msq, 1200msq, 1320msq, and 1500msq in floor area."
"6. The complex of massive buildings occupies an elevated position on rising ground above the village of Clifton. The combined lengths of Units 3 and 4 are starkly visible on approach from the south-west along the A643. Trees and bushes have been planted beyond the perimeter of the site in connection with the golf course which now surrounds it. However, on the all-important south-western boundary their potential as an ultimately effective screen is limited by a sharp fall in land level towards an ornamental lake. Planting on the lower levels would take many years to reach an effective height. The site itself contains no landscape planting, and insufficient space to accommodate an effective landscape belt.
7. Purely by virtue of their purpose as agricultural buildings the appeal units could be considered appropriate in the open Green Belt landscape whilst they were in use for agriculture. However, their elongated form, massive bulk and stark design are not in themselves in keeping with their rural surroundings. I am not confident that imposing conditions to secure an improvement in the external appearance of the building, as Footnote 1 to paragraph 3.8(d) of PPG2 suggests, would be adequate to overcome the harmful impact of their mass in the landscape. In the circumstances I consider that the appeal proposal would constitute inappropriate development in terms of PPG2 and UDP Policy N13(i).
It is said that in these paragraphs the Inspector misinterpreted or misapplied PPG2 because she was required to assess the buildings in their surroundings. Although the Inspector describes the surroundings as rural, it is submitted that she wholly failed to take into account or even mention the immediate proximity of the M62 motorway and the Hartshead Moor Motorway Service Area, those being features which the Council had considered important matters in assessing the application.
It is further argued that it must have been an important factor to consider what would be the effect of leaving the buildings empty and the Inspector did not address that issue anywhere in her decision letter. It is then said that the Inspector relied on findings of fact which were Wednesbury unreasonable. The finding that the buildings are not in themselves in keeping with their rural surroundings was unreasonable having regard to the fact that those surroundings included the immediately adjacent motorway and the motorway service area as well as the golf club buildings.
It is said that the Inspector's lack of confidence that screening would be effective was Wednesbury unreasonable in the light of a number of factors. Those factors include the extent to which screening had already been effective to screen parts of the motorway service area; screening that had been effective on the golf course and the proposition that further screening could be achieved by means of a landscaping condition, which the Council had been content to accept. It is said that in the absence of any explanation it was unreasonable to conclude that screening by planting would be frustrated by the fall in the land level to the southwest of the buildings.
It is further submitted that given all of the immediately surrounding land was in the ownership of the applicant and had been the subject of extensive landscaping and planting as part of the golf course, the Inspector should not have relied on the absence of space for landscaping within the application site itself.
Mr Craig accepted that nobody visiting the site and the surrounding area could fail to have noticed the presence of the M62 and the motorway service area and the golf course. He did not suggest that the Inspector had failed to notice these features, but he did submit that in assessing the surroundings the Inspector failed to take them into account. Alternatively, they were such important features that she should have specifically referred to them in her decision letter.
To deal with that last point first. The decision letter is addressed not to the world at large but to the parties to the appeal, who will be well aware of all the arguments and of the surrounding circumstances: see Seddon v the Secretary of State for the Environment  JPL 835 (noted in paragraph 288.17 of the Encyclopedia of Planning Law).
The existence of the M62 and the motorway service area was perfectly obvious to all of those involved in the appeal. Those features had been referred to both by the local planning authority and by the Claimant in its written representations. There was no need for the decision letter to spell out the obvious. The Inspector went on an accompanied site inspection. There was ample opportunity for the parties to draw her attention to the M62, if indeed it was necessary to do so.
I can see no basis for the submission that the Inspector must have ignored the existence of the MSA and the motorway in reaching the conclusion that the buildings were not "in keeping with their rural surroundings". Motorways frequently pass through rural areas. Motorway service areas, since they are there to serve motorways, often have to be located in rural areas as well. Whether the surroundings of this appeal site, including the motorway and the MSA, could fairly be described as rural was a matter for the Inspector to judge.
It is difficult to see how her view can be described as Wednesbury unreasonable when her colleague in 1992, having referred to the motorway and the MSA specifically in his decision, and also referred to the existence of the planning permission for the golf course, felt able to refer to the generally open nature of much of the surrounding countryside and to the buildings standing out in what was otherwise a relatively unspoilt tract of open countryside.
Turning to the question of screening. I have already mentioned the planning authority's view. It was not that there was no need for further screening, it was that further landscaping and screening was required but the planning authority was satisfied that effective screening could be achieved. The Inspector disagreed. She was entitled to do so. She had to form her own planning judgment as to the adequacy of the existing and any proposed screening.
Mr Craig referred to the fifth proposition in the summary of the Seddon case contained in the Encyclopedia of Planning Law:
"If the Secretary of State differs from his Inspector on a finding of fact and takes into account any new evidence or matter of fact not canvassed at the inquiry he must, if this involves disagreeing with the Inspector's recommendations, notify the parties and give them a least an opportunity of making further representations."
"The Appellant manufacturing company is itself the intended user. The evidence is that commercial vehicle movements would be in the order of 2 or so per day. However, for a B2/B8 use on so large a site this strikes me as an unusually low figure. It may genuinely apply to the Appellant company at the present time. However, if permission were granted it would be hard to control future intensification of commercial vehicle movement above that level, whether the site continued in occupation by the Appellant or by some other user. The site has the capacity and the potential to generate large numbers of commercial lorry movements. The comings and goings of farm traffic and of other commercial vehicles associated with the livestock enterprise, where appropriate to the Green Belt. The vehicle movements associated with a manufacturing and distribution use, on the scale represented by the site, could be significantly different in number and in kind. The purposes of Green Belt include, according to PPG2 paragraph 1.5, to assist in safeguarding the countryside from encroachment. The potential scale and volume of traffic movement to and from and within the appeal site would in my view constitute encroachment upon the countryside. On that account I consider that the appeal proposal would represent inappropriate development in the Green Belt in terms of PPG2 paragraph 3.8(b) and UDP Policy N13 (iii)."
"Some space for lorry parking is available on the hardstanding beside Unit 4. However, much of this is at a high level, from which lorries could well be visible from a distance, from the A643 or from public tracks and footpaths on the lower ground to the south. Lorries are not usually coloured with the purpose of blending into the landscape: on the contrary, they are designed to stand out. Because of the drop in land levels, neither the actual nor the potential screening available would in my view be adequate to conceal lorries on the perimeter road and on the hardstanding. On that account I consider that the proposal would conflict with the openness of the Green Belt, and would constitute inappropriate development in the terms of PPG2 [and UDP policy]."
"The proposal would bring with it a 100 jobs. However, it is not clear whether some or all of these would be relocated from existing premises. I have no evidence that access to employment is especially difficult in this part of the District. Without such evidence, I consider that UDP Policy E3 adds little weight in favour of the proposal. Government planning policy guidance on the location of employment at PPG13 emphasises at paragraph 2.1 the need to promote strategies to reduce the need to travel. I take this to include the movement of commercial traffic as well as journeys to work. At paragraph 3.5 it states that local authorities should avoid major developments in locations not well served by public transport or otherwise readily accessible to a significant local residential work force. The jobs would be provided in a location well beyond major centres of population. The A643 is a bus route: but I have no evidence that the employee base is likely to be served by that route at appropriate working times. The Appellant offers a minibus service, but has submitted no S106 undertaking to provide such a service. On balance, I consider the evidence inadequate to demonstrate that the appeal proposal would comply with the provisions of PPG13."
"In addition, the Council's concerns over accessibility issues could have been reduced by the provision of a 'travel plan' under which arrangements could have been made by the appellant to make transport provisions for the employees working at the site such as to reduce reliance on car travel to access the site. Again however, the appeal was lodged prior to this matter being fully discussed with the appellant, and, as this would be a matter where a Section 106 Agreement would also have been necessary, the appeal will need to be determined without consideration of this in the absence of a unilateral undertaking."
"PPG2 paragraph 3.9 states that evidence that the building is not redundant in its present use is not by itself sufficient grounds for refusing permission for a proposed new use. The evidence is that the buildings are indeed redundant for the raising of cattle. However, I am concerned that the land immediately outside the site and on the land edged blue as being in the ownership or control of the Appellant, is currently the subject of a planning application to erect 4 large poultry houses not entirely dissimilar to the appeal buildings in their shape and size. I have no evidence that the appeal buildings are unsuitable for poultry purposes. If approval of the appeal scheme were to result in the need to erect 4 more large buildings, that seems to me to be a further argument against the appeal proposal, for it would clearly result in a further decline in the openness of the Green Belt in this prominent location."
"Those disadvantages which weigh most heavily against the proposal derive from its scale and are not in my view capable of amelioration via the imposition of planning conditions. Government Circular 11/95 on the use of conditions in planning permissions, advises that a permission personal to a company is inappropriate because it shares can be transferred to other persons without affecting the legal personality of the company. Such a condition would in any case be powerless to prevent future changes in company activity which might increase lorry movement to and from the site. Conditions to supplement existing landscaping would be ineffective, given the lack of suitable land for planting on the south-west side of the site."