QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
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|TUNBRIDGE WELLS BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr Richard Drabble QC and Mr David Forsdick (instructed by Royal Tunbridge Wells Borough Solicitor) for the Defendant
Crown Copyright ©
MR JUSTICE HARRISON :
"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."
Paragraph 3.4 states:-
"The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes:-
----redevelopment of major existing developed sites identified in adopted local plans, which meet the criteria in paragraphs C3 or C4 of Annex C."
"Whether they are redundant or in continuing use, the complete or partial redevelopment of major developed sites may offer the opportunity for environmental improvement without adding to their impact on the openness of the Green Belt and the purposes of including land within it. Where this is the case, local planning authorities may in their development plans identify the site, setting out a policy for its future redevelopment. They should consider preparing a site brief. Redevelopment should:
(a) have no greater impact than the existing development on the openness of the Green Belt and the purposes of including land in it, and where possible have less;
(b) contribute to the achievement of the objectives for the use of land in Green Belts (paragraph 1.6 above – see also paragraph 3.13);
(c) not exceed the height of the existing buildings; and
(d) not occupy a larger area of the site than the existing buildings (unless this would achieve a reduction in height which would benefit visual amenity)."
"….redevelopment proposals within the Major Development Site at… Pembury Hospital…will only be permitted if all of the following criteria are satisfied:
1 Development would not have an adverse impact on the openness or visual amenity of the Metropolitan Green Belt;
2 Development would not lead to a major increase in the developed proportion of the defined Major Developed Site:
3 Development would not exceed the height of any of the existing buildings; and
4 Where redevelopment is proposed, development would not occupy a footprint which exceeds that of the buildings to be replaced unless this would achieve a reduction in height which would benefit visual amenity."
First ground of challenge
a) Officer's report
"(a) Policy Context
The site is located within the Metropolitan Green Belt where National and Local Planning Policy contains a strong presumption against inappropriate development. In the absence of any allocation in the adopted plan, the application is a departure from adopted planning policies. It is thus necessary to consider whether there are other material planning considerations, which indicate that planning permission should be granted. National Policy on Green Belts is set out in PPG2, which indicates that very special circumstances are required to justify an exception to Green Belt policy. Construction of new buildings in Green Belts is inappropriate, unless it is for "limited infilling or redevelopment of major existing developed sites identified in adopted local plans which meet the criteria in paragraph C3 or C4 of Annex C."
The report then stated that more detailed advice on the redevelopment of major developed sites was contained in Annex C of PPG2 and it set out the criteria in paragraph C4. It continued:-
"The Local Plan Review identifies Pembury Hospital as a major developed site. Policy MGB2 sets out criteria, which are very similar to those in PPG2. Whilst this is not an adopted local plan, it is a material consideration as identified above. In my view the criteria set out in PPG2 should be taken into account as part of the overall assessment of these proposals.
(b) Height of Development
With regard to the height of the development, existing buildings are a mixture of one, two and three storeys in height. However, the taller buildings are set in the more elevated parts of the site. The proposals locate the main hospital buildings at a lower level, in the south eastern part of the site. The sections submitted with the applications indicate that the new buildings would be no higher than the height of the existing Maternity Unit. The key issue is the impact of development on the openness of the Green Belt. Whilst the buildings themselves would be significantly taller than the existing, due to their proposed siting and the topography of the site, they would not have a greater impact on the openness of the Green Belt.
(c) Footprint of Development
With regard to the "footprint" of development, (the site area covered by the buildings), the proposed new hospital would cover only 47 sq.m. more than the existing footprint of 25,000 sq.m. I consider this difference to be insignificant. Of greater significance is the proposed 900 space car park, which adds 8000 sq.m. to the footprint of the scheme. I have asked the applicant to provide further justification for the scale of this structure. The issue of the total number of spaces is considered in the Transport section of this report. The applicants have provided a report of the various options they considered before proposing this multi-storey structure. All options involve some multi-level parking. Some options increase the amount of open air parking to reduce the extent of the multi-level structure. One option has 521 additional open air spaces, with multi-level parking reduced to 379 spaces. The applicants conclude that the selected option is preferable for a number of reasons:-
- It provides optimum quality, directness and safety of pedestrian movements between the car park and the hospital entrance.
- It is a good solution for mobility impaired users.
- Extensive at-grade parking would require lengthy ramped routes to negotiate levels changes.
- Less area required for circulation and access routes.
- It avoids visual intrusion of extensive surface parking areas.
(e) Conclusions on Green Belt Policy
In assessing the Green Belt issues the applicants draw attention to the following factors which they suggest constitute very special circumstances:-
- The intrinsic benefits of the site, being an accessible location which avoids the need to take greenfield land, as set out in the Local Plan Review
- The particular opportunities afforded by the topography and woodland setting of the site.
- The need for comprehensive new hospital facilities to meet the healthcare needs of the catchment area.
My conclusions on these issues is that the Council, through the Local Plan Review, has expressed support in principle for the benefits of a new single-site hospital at this location. Moreover, the identification of Pembury as a Major Developed Site is a significant consideration. This approach, albeit not tested through a local plan inquiry, is fully in accord with the approach of PPG2. I am satisfied that the policy criteria relating to height of development are complied with. I have some concern regarding the extensive footprint of the multi-storey car park. However, the applicants have demonstrated benefits in terms of reducing visual impact and meeting the needs of future users of the hospital. These are important considerations, which amount to very special circumstances justifying the additional footprint. I do not consider that the extension to the site at the north east corner would materially harm the openness of the Green Belt. I conclude that the proposals accord with the general intentions of National policy on Green Belts and with the emerging policy of the Local Pan Review. "
"With regard to the Green Belt issue, it is significant that the Local Plan Review has expressed support for a single site hospital at this location. I am satisfied that the policy criteria relating to height have been complied with. I have some concerns regarding the extensive footprint of multi-storey car parking. However, the applicants have demonstrated benefits from adopting this approach. I conclude that, whilst the application is a departure, it accords with the general intentions of National policy on Green Belts."
Second ground of challenge
"Some of the objections to the emerging policies refer to an alternative site for the new hospital at Knights Park. An outline planning application has been received for a hospital on that site. However, in my view the application for the Pembury site should be considered on its own merits. It is not appropriate to delay this application until such time as an alternative can be considered."
"Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significantly adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it."
"…comparability is appropriate generally to cases having the following characteristics: First of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development, or at least only a very limited number of permissions."
Finally, Simon Brown J. said that there may be cases where, even though they contain those characteristics, it could properly be regarded as unnecessary to go into questions of comparability, particularly if the environmental impact was relatively slight and the planning objections were not especially strong.
"If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. Generally speaking – and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J. – such circumstances will particularly arise where the proposed development, although desirable in itself, involves, on the site proposed, such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes in the mind of a reasonable local authority, a relevant planning consideration upon the application in question"
"The Borough Council was and remains satisfied that this site is able to accommodate this use without any conspicuous adverse effect especially on the openness of the Green Belt. It was therefore not considered that the relative merits of alternative sites had to be evaluated."
Third ground of challenge
"The site is on Lower Tunbridge Wells Sandstone, a minor aquifer within the Environmental Source Protection Zone. Due to the historic uses of the site (oil storage, burning pits, sewage works) there is a high potential for localised contamination. There is a potential risk to the acquitter from ground works and piling. The proposed mitigation is a programme of site investigation and remediation. The Environment Agency has recommended conditions on these issues."
The environmental statement gave details about the potential for ground contamination and details of the recommended remedial measures.
"No development approved by this permission shall be commenced until:-
(i) The application site has been subjected to a detailed scheme for the investigation and recording of contamination and a report has been submitted to and approved by the Local Planning Authority.
(ii) Detailed proposals in line with current best practice for the removal, containment or otherwise rendering harmless of such contamination (the "Contamination Proposals"), have been submitted to and approved by the Local Planning Authority.
For each part of the development Contamination Proposals relevant to that part (or any part that would be affected by the development) shall be carried out either before or during such development as appropriate.
If during development works any contamination should be encountered which was not previously identified and is derived from a different source and/or of a different type to those included in the Contamination Proposals shall be submitted to and approved by the Local Planning Authority.
If during development work site contaminants are found in areas previously expected to be clean, then their remediation shall be carried out in line with the agreed Contamination Proposals.
Reason: to prevent pollution of the water environment and harm to human health."
"In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects."
Laws LJ indicated at paragraph 46 that an EIA may not be required if the nature, availability and effectiveness of prospective remedial measures are already plainly established and plainly uncontroversial.