QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|RICHMONDSHIRE DISTRICT COUNCIL||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS S-J DAVIES (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 26th June 2003
"The standard of 2.43 ha. (6 acres) of open space accessible to the public per 1000 population will be used by the Council as an interim measure, to assess the needs of the communities listed below, until a replacement local standard has been completed ...
Development proposals in these areas which would, to a material extent, taking due account of the standard, either reduce the supply of, or fail to meet extra demand for, open space of this kind will not be permitted."
The following text provides the justification for the policy. Amongst other things, it indicates the kinds of recreational open space involved. It states in its final paragraph:
"Not all development will include recreational open space on-site. Guidance Note 8 explains how, in these circumstances, developers can meet any shortfall arising from their development by contributing towards the provision of open space on a site allocated in Policy 65."
Policy 65 of the present local plan contains a list of areas of land allocated for use as public open space during the plan period.
"Where recreational open space, which is needed in association with a development, cannot be provided within the site or on other land in the developer's control, an alternative approach (which should meet the requirements of Policy 64), would be to make a financial contribution to the provision of areas of open space identified in Policy 65. This Guidance Note sets out a basis for negotiations with developers in these circumstances ...
Guidance Note 14 identifies three settlements (Richmond ...) where additional open space is required to meet the minimum standard. In these settlements, it is likely that all new residential developments which are too small realistically to accommodate recreational open space, and where it would be unreasonable to require the developer to make available other suitable land off the development site, will need to consider a financial contribution in lieu of physical provision. Whilst developers of new housing will not be expected to meet the cost of dealing with a historic deficit of recreational space, all new housing contributes to population growth and thus gives rise to a need for extra open space in accordance with the NPFA '6 acre standard' ...
The object of the arrangement put forward below is to provide a consistent basis for negotiations. Thus, a fair pro rata contribution will be sought from all developers in the settlements where a need has been identified, based on the estimated cost of provision in accordance with the '6 Acre Standard'.
The basis for calculating the cost of provision will be as follows ...
3. Since all residential development in the identified settlements will be expected to contribute to the provision of facilities, the requirement for open space will be related to the size of dwellings to be built ...
Contributions will flow into a fund set up for the purchase of land for open space purposes, where this is required, or for the equipping or laying out of open space where land is already available. If proposals are not implemented within 10 years of receipt of the contribution, the money will be returned to the developer ...
The contributions will only be used to fund the provision of recreation space within the settlement in which the residential development is taking place.
Exceptions to the scheme will be sheltered accommodation for the elderly, rest homes, nursing homes and other institutional homes, extensions, granny annexes, replacement dwellings (on a one to one basis), and temporary permissions for mobile homes. The Council accepts that these types of development will not affect the demand for open space to a material extent. Other developments are, however, likely to do so ..."
"The Council's reasons for refusal do not cite any failure to comply with LP Policy 65 on the provision of recreational open space. No S106 undertaking has been submitted and it is clear that if I were to allow the appeal, no monetary contribution could be required. The proposal would therefore appear not to comply with Policy 65, its related schedule and guidance. The proposed family houses would be likely to create new demand for open space if they gave rise ultimately to an influx of children into the area. However, the Council has not explained in its representations what material harm would be likely to result if this development were to be allowed without the suggested contribution. It does not explain how the contributions made under Policy 65 have been used to date, nor how a failure to make a contribution in this case would be likely to impact upon the recreational provision currently being made within the Richmond area. In these circumstances, where only 3 dwellings are concerned and on balance, I consider that material harm is unlikely to result in this case."
(I repeat that the Inspector's references to policy 65 are to policy 64 of the current local plan, which I have already quoted.)