QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| ONESTO LANNI
|- and -
|(1) THE FIRST SECRETARY OF STATE
(2) REIGATE AND BANSTEAD DISTRICT COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert Palmer (instructed by Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Maurice Kay :
"(1) The Development would be inappropriate development within the Metropolitan Green Belt and would also have a detrimental impact on its open character by reason of its bulk, height and massing. It would thereby conflict with policies PE2 of the approved Surrey Structure Plan 1994, CO1 of the adopted Reigate and Banstead Borough Local Plan 1994, LO6 of the Surrey Structure Plan First Alteration (Deposit Draft) 2001, CO1 of the Reigate and Banstead Borough Local Plan First Alteration (Revised Deposit Draft) 2000 and PPG2 – Green Belts.
(2) The development would have a detrimental impact on the landscape character of the surrounding Area of Great Landscape Value an Area of Natural Outstanding Beauty by reason of its height and massing. It would thereby conflict with policies PE7 of the approved Surrey Structure Plan 1994, PC1 of the adopted Reigate and Banstead Borough Local Plan 1994 and SE6 of the Surrey Structure Plan First Alteration (Deposit Draft) 2001."
In short, the first reason for refusal related to the open character of the Metropolitan Green Belt (MGB), whereas the second reason related to the landscape character of the Area of Great Landscape Value (AGLV) and Area of Outstanding Natural Beauty (AONB).
The Inspector's Reasoning
At the Inquiry the parties agreed that the proposal does not accord with the categories of appropriate development that are set out in paragraphs 3.4 to 3.6 of PPG2. Neither does it relate to the reuse of an existing building as considered in paragraph 3.7 to 3.10 of that document. The site is not identified in the development plan as a site suitable for redevelopment under the terms set out in Annex C to PPG2. The proposal therefore represents inappropriate development in the MGB and is, by definition, harmful to the MGB. The Decision Letter states:
"11. The Appellant maintains that the redevelopment of the site would feature previously developed land within the terms laid down in PPG3 and will deliver a much more aesthetically pleasing building when compared with the existing complex. This, together with other works, would significantly enhance environmental quality at this sensitive location and cumulatively these factors amount to very special circumstances, sufficient to overcome the presumption against inappropriate development within the Green Belt.
12. I accept that the appeal site represents previously developed land as defined in Annex C to PPG3. However the site is not within or indeed adjoining, the defined urban area of Reigate. In addition, I do not consider that the site could be adequately described as being suburban in character. It is well separated from other dwellings, within a well wooded landscape. It is a country hotel set just outside the town within the countryside. Whilst it could be argued that a country hotel does not represent appropriate development within the Green Belt under the terms of PPG 2, such premises do exist and fulfil a need. This site is currently in full and active use for that purpose, a role it has performed for very many years. Therefore, whilst I accept that the previously developed status of the site is a material consideration, it does not on its own, in my view, outweigh the general presumption against inappropriate development within the Green Belt.
13. I acknowledge that the proposed building has been thoughtfully designed, drawing on local architectural influences, and interpreting and adapting these to the needs of a purpose built residential complex. Generally speaking I find that the building would occupy a similar footprint to the existing complex, and would also have a similar massing and bulk. However this would be relieved by more interesting and appropriate frontage detailing an archway that would allow vehicles to penetrate to the rear of the site where parking would be contained and concealed.
14. These features, together with the intention to improve landscaping and ensure its future management would in my view represent a visual improvement when compared with existing hotel complex which is architecturally unprepossessing, having grown incrementally over the years. Overall the proposal would maintain the openness of the site.
15. However, the existing hotel and restaurant buildings cannot in my view be described as visually unattractive and in need of replacement. Although architecturally unimaginative, they are well established within their setting and are maintained to a high order. Their horizontal alignment, utilising the gradient of the land, limits their visual presence. The surface car parking arranged around the front and side of the restaurant could not be described as an attractive feature, but as a necessary requirement of the site, given its limitations in terms of accessibility by other modes of transport. The car parking area is not visible from distant views, and is only readily apparent and largely confined to motorists in shorter views when travelling from north to south on the A217. Whilst the proposal would supply visual benefits over the existing development, similar arguments could be applied to many previously developed sites within the Green Belt. It must therefore be weighed against other considerations.
16. The suitability of the location for housing purposes was also examined at the Inquiry, given the guidance established in PPG3 designed to secure sustainable residential development. The proposed density of housing development on the site accords with the aspirations contained in paragraphs 57 and 58 of PPG3. However, paragraph 56 of that document indicates that the townscape and landscape of the wider locality must inform considerations of design and layout. In this case this is typified in the vicinity of the site, by very low density housing set within spacious and well wooded grounds. The introduction of high density residential development at a location of this kind outside the built up area would not, in my view, be consistent with the nature of the locality.
17. More significantly in my view, is the detachment of the site from most urban services and facilities. A bus service does operate along the A217 but the nearest bus stops are some distance from the appeal site and are poorly related to it because of the lack of pedestrian footpaths. Any user of the bus service to or from this site would also have to cross the A217 to do so, an inherently dangerous manoeuvre given the width and nature of the road, the volume and speed of traffic, particularly that descending the hill, and the limited forward visibility.
18. The Appellants submitted evidence suggesting that the proposal would result in a net reduction of vehicular movement to the site. Whilst this may be so, much of this movement, in my opinion, would not be lost, but rather displaced to other locations, by people seeking access to comparable facilities at other establishments in the area. Given the detachment of the site from the urban area and the severe limitations on the use of public transport described above, all residents of the proposed flats would, in my view, be very heavily dependant on the motor car for access to normal day to day services and facilities. I do not therefore consider the proposal to have good accessibility to jobs, shops, and other services by modes other than the car. In this respect the proposal is contrary to the requirements of PPG3. Neither does it offer the potential for improving such accessibility.
19. I have carefully balanced the visual improvements offered by the proposal against the disbenefits and other considerations discussed above. I conclude that the inappropriate nature of the development proposed, given its location within the Green Belt, is not clearly outweighed by very special circumstances sufficient to overcome the presumption against development. Accordingly I consider the proposal to be contrary to the advice contained in PPG2 and PPG 3, policy PE2 of the adopted Structure Plan, policy CO1 of the adopted Local Plan, and policies LO6 and CO1 of the emerging Structure and Local Plans respectively."
(2) AONB and AGLV
The Inspector observed that the appeal site occupies a prominent location within the Surrey Hills AONB and AGLV which are contiguous. The Decision Letter states:
"21. The existing complex has a strongly linear visual impact in the landscape. Its visibility is heightened by the horizontal emphasis of the detailing of its external construction, and the light colour of some finishes, added to considerable areas of glass which reflect the light. Given their sudden orientation the net result is the complex is visible from various points to the south particularly during the winter months, when the mostly deciduous nature of the surrounding woodland is less effective at providing concealment.
22. As I indicated above, I consider the proposal to have a similar mass and bulk when compared with the existing complex. The new proposal would however be less dependant upon horizontal detailing, featuring front gables and other design elements that would produce a more varied and interesting frontage. In addition to being more visually pleasing, the frontage design, supplemented by more subdued materials of construction and additional landscaping, would, I consider, make the flats less conspicuous from distant viewpoints, and more consistent in terms of design with other buildings in the general area. From closer viewpoints, the removal of frontage car parking, and a reduction in signage would also deliver visual benefits.
23. I have therefore concluded that the proposal would result in a better building of suitable design for its setting. It is clear to me that the proposal would conserve the character and appearance of this part of the AONB and AGLV. As such it is in accordance with the guidance in PPG7, policy PE7 of the Structure Plan, policy PC1 Of the adopted Local Plan, and policy SE6 of the emerging Structure Plan."
"24. I have concluded that the proposal amounts to inappropriate development in the Green Belt. I accept that the proposal would offer the prospect of visual improvements when compared with the existing development, and have given appropriate weight to these considerations. However I do not consider this to represent the very special circumstances needed under terms of PPG2 and the development plan, to overcome the presumption against the type of development proposed in the Green Belt. In my view that is the decisive factor in this case. This conclusion is supported by deficiencies I have identified in the suitability of this site for housing development given its pronounced physical detachment from town services and facilities and inadequacies of public transport pedestrian connections.
25. My findings that the proposal would accord with policies designed to protect the landscape quality of the AONB and AGLV, do not overcome these objections. For the reasons set out above, and having had regard to all other matters raised, I therefore conclude that this appeal should not succeed."
The appeal to this court
Heading 1. grounds arising from the Inquiry process.
(i) Previously developed land.
Mr. Pickles relies on the witness statement of Mr. Hayward as evidence as to how this and other issues arose at the Inquiry. Mr. Hayward states:
"None of the written evidence to the Inquiry indicated or contended that the hotel and restaurant fulfilled a recognised or defined need as a 'country hotel' or otherwise or that there was a case for its retention on that basis….Officers had reported (and members expressed no disagreement) that there was no shortage of hotel accommodation (especially when the number of hotels surrounding Gatwick is taken into account) …..In response to questions from the Inspector, Mr. Williams gave oral evidence that: notwithstanding its design quality, the hotel was a well established part of the scene; it had grown up over many years; there are some hotels in countryside settings and it is not unusual to find them; it has operated successfully and viably over many years. The Inspector did not ask any other witness any questions about the hotel and restaurant operation and of the merits of its retention as such."
The complaint is now made that what amounts to a "country hotel", whether Bridge House Hotel is one and the extent to which it fulfils a need as one were not points that were in issue between Mr. Lanni and the local planning authority. They were not identified as issues by the Inspector at the commencement of the Inquiry, nor were they put fairly and squarely to Mr. Williams or put at all to Councillor Bennett or Mr. Hayward. It is suggested that the evidence did not support a finding that Bridge House Hotel is or functions as a "country hotel" or that there exists a need for its retention as such. Mr. Pickles submits that if these issues has been raised at the Inquiry, Mr. Lanni would have had to consider requesting an adjournment. At the Inquiry it was the case for Mr. Lanni that the site contained "previously developed land". Indeed, this was part of his case on "very special circumstances". The point Mr. Pickles seeks to make is that it was not fair that that aspect of Mr. Lanni's case should be diluted by the reference to a "country hotel" and the view that "such premises do exist and fulfil a need".
(ii) The principle of flats.
The evidence of Mr. Williams and Councillor Bennett contained no objection in principle to flats and the Inspector did not question them on the issue. At the end of Mr. Hayward's evidence the Inspector raised the issue with him. In his witness statement Mr. Hayward recounts:
"Without notice and the point not having previously been controversial, I was not immediately able to respond to it and identify flats in the area. Mr. Lanni.'s agent stated that the site visit would enable him to view flats in the area and an itinerary was agreed with Mr. Williams. We agreed that the site visit should enable the Inspector to view site 2 ( a recent purpose built flatted scheme) and site 5 (a flats conversion scheme). I went on the site visit and confirm that site 2 was pointed out to the Inspector and that we drove out to site 5 by mini bus."
It will be recalled that in paragraph 16 of the Decision Letter the Inspector drew attention to "very low density housing set within within spacious and well wooden grounds" in the vicinity and added that "the introduction of high density residential development at a location of this kind outside the built up area, would not, in my view, be consistent with the nature of the locality". Once again, Mr. Pickles submits that the question whether the development of flats at the proposed density was consistent with the nature of the locality had not been in issue between Mr. Lanni and the local planning authority; nor had it been identified as an issue by the Inspector at the outset of the Inquiry. It was simply raised with Mr. Hayward (but not Mr. Williams or Councillor Bennett) in the way described in the witness statement. It is suggested that it was unfair to Mr. Lanni that this issue should emerge in this way and at that stage. It is further suggested that, once the issue had been left to the site visit, the Inspector's reasons ought to have explained how, and if so to what extent, sites 2 and 5 had affected his decision. It is not suggested that the Inspector was not entitled to take the matter into account. The suggestion is that he approached the issue unfairly.
(3) Travel patterns
"In response to questions from the Inspector, Mr. Williams confirmed that…..officers had regard to the suitability of the site for housing in terms of PPG 3 and sustainability; the fact that – in terms of the sequential approach – the site was not previously developed land within the urban area, was not seen as overriding; the site is within reasonable walking distance of the town centre though there is a steep gradient and it is not ideal; the site is on a bus route but it is probably not an attractive option and the predominate mode of transport would be by motor vehicle.
Again in response to the Inspector, Councillor Bennett indicated that in highway terms members' main concern had been that there was no footpath on the western side of Reigate Hill and pedestrians therefore needed to cross the road but that this had been addressed by Surrey County Council (the highway authority) who said that, despite that, there was no highway objection.
With neither of these witnesses did the Inspector investigate either the relative merits of the site in hotel and restaurant use as against residential or the likely impact of closure of the hotel on travel patterns.
Towards the close of evidence in chief, I gave evidence on the inappropriateness of the appeal site as a location for a hotel and restaurant. I emphasised that national policy encouraged the provision of hotels and restaurants in urban areas and in or on the edge of town centres in particular. I observed that removal of the existing uses may encourage hotel/restaurant development in these locations favoured in policy terms. I then produced my further Appendix….it indicated a likelihood that the appeal proposal would generate between about 46 and 180 vehicle movements per day. On the other hand, it indicated that the hotel….has the potential to generate about 350 or 440 vehicle movements per day and the restaurant…has the potential to generate almost 200 further vehicle movements per day.
Questioned by the Inspector I emphasised that it was the Appellant's case that a residential use was more sustainable than that existing (on the basis of the trip generation figures quoted) and that Local Plan Policy encouraged hotel development in urban areas and within town centres."
The Inspector clearly had this evidence well in mind. The Decision Letter refers in paragraph 18 to evidence suggesting that the proposal would result in a net reduction of vehicular movement to the site. The Inspector continued:
"Whilst this may be so, much of this movement, in my opinion, would not be lost, but rather displaced to other locations, by people seeking access to comparable facilities at other establishments in the area."
The Inspector then referred to the likelihood that the residents of the proposed flats would be heavily dependant on the motor car for access to normal day to day services and facilities. He did not consider that there was good accessibility for jobs, shops and other services by modes other than the car. This produced the conclusion that the proposal is contrary to the requirement of PPG3 and does not offer the potential for improving accessibility.
(4)The previous appeal decision.
"Following the Inquiry my attention was drawn to a recent appeal decision of the Secretary of State concerning a development of flats within the vicinity of the appeal site. It appeared to me that this was relevant to the issues raised by the Inspector at the Inquiry. I thought that it was important – in the context of how these issues had been raised and in the interests of both Mr. Lanni and the consistency of decision making – to bring it to his attention. I sent it to PINS with a request that it be forwarded. But it was not. Whether (the Council's) response to it….was forwarded, I do not know."
Thus, the context is one of submission of material after the Inquiry but before notification of decision. On this single issue, the Inspector has made a witness statement in these proceedings. He recounts that he had announced at the Inquiry that any late evidence submitted would be disregarded save in extraordinary circumstances. As a matter of law, he plainly has a discretion in this regard. By rule 18(2) of the Town and Country Planning (Appeals) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 an Inspector may disregard any written representations or evidence or any other document received after the close of the Inquiry. The evidence of the Inspector is that he had considered Mr. Hayward's letter but had concluded that there were no circumstances justifying its reception in evidence. He instructed the Secretariat to return it to Mr. Hayward and took a similar step when he disregarded the Council's response. He states that the circumstances pertaining to the other appeal site were very different from those concerning Mr. Lanni's appeal. Moreover the other appeal decision predated the Inquiry in Mr. Lanni's case by several weeks. The fact that Mr. Hayward only learned of it and sought to rely on it a considerable time after the closing of the Inquiry does not amount to an extraordinary circumstance. I have no doubt that the Inspector's decision not to consider this later material was an unimpeachable exercise of his discretion.
2. Other grounds
(1) Green Belt: openness
(2) Green Belt: visual benefits.
(3) Green Belt: "very special circumstances".
(4) Enhancement of the AONB/AGLV
3. Human rights