England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Monday, 19 July 2004

1. MR JUSTICE SULLIVAN: This is an application under Section 288 of the Town and Country Planning Act 1990 (the Act), to quash a decision of an Inspector appointed by the first defendant, granting planning permission to the second defendant for residential development on land at the junction of Cumberland Place and Granby Hill, Clifton, Bristol (the site).
2. There were three appeals before the Inspector, appeals A and B were concerned with proposals to develop the site for 9 and 10 dwellings respectively. In addition, car parking and some public open space would be provided within the site.
3. Appeal C related to a separate parcel of land adjoining the site. Planning permission was sought for its use as public open space. The claimant had no objection to this use, and the Inspector allowed appeal C. The claimant does not challenge this aspect of the Inspector's decision.
4. The combined site of the three appeals forms an L-shape about a thousand square metres in extent, with the bottom of the L on the northern side of Cumberland Place and the long side of the L on the eastern side of Granby Hill. The Inspector described the surroundings as "intensely urban". Residential development descends down the hillside from Clifton to Hotwells. The site is down towards the river at Hotwells. Granby Hill is quite steep.
5. The three appeals were made against the claimant's failure to give notice of its decisions on the applications within the prescribed time. Subsequently, the claimant resolved that it would have refused planning permission for the two residential applications for the following reasons:

"(1) the development would involve the loss of an area of open space, which is of substantial amenity importance and value to the local community and therefore contrary to policy NE1 of the Bristol Local Plan and Policy NE1 of the First deposit Proposed Alterations to the Bristol Local Plan; and

"(2) the height, massing and overall external appearance of the proposed building fails to respond appropriately to the topography of the site and relates poorly to the surrounding built form. It represents an unacceptable urban design solution that will appear incongruous within the defined townscape of the immediate locality and would therefore fail to preserve the character and appearance of this part of the Clifton Conservation Area ... "

6. Reason 2 had been recommended by the claimant's officers. The officers' report had considered whether planning permission should be refused on open space grounds and concluded that a refusal on such grounds would not be justified. Members disagreed, hence the inclusion of reason 1 for refusal.
7. Policy NE1 in the Local Plan is in the following terms:

"(I) The distribution and variety of open spaces throughout the city will be maintained and, where possible, enhanced.

(II) Sites which are important for nature conservation, recreation, historic landscape interest, landscape quality, visual amenity, community or outdoor leisure-related use, or providing setting or relief to the built environment, defined on the Proposals Map, will be protected as open space.

"(III) Development involving an unacceptable loss of important open space (designated in section II and defined on the Proposals Map), or which would have a significant adverse effect on the interest, use, amenity, character or accessibility of such open space, will not be permitted.

"(IV) Where sites are not defined as open space on the Proposals Map, and are not subject to any other designation or proposal, account will be taken of the need to protect open space interests and uses in determining planning applications. Particular attention will be paid to the amenity and nature conservation value of undefined open space sites."

8. The site had been occupied by residential properties which had been demolished at some time between 1940 and 1960, probably as a consequence of bomb damage during world war two. The site remained derelict until about 1970. Following this, local residents had arranged for it to be graded with a bulldozer, topsoil was spread and grass was sown. Local residents then used the site for casual recreation. That use had not gone unchallenged. An application had been made to register the site as a Town Green. Following an enquiry by an Inspector appointed by the claimant, that Inspector had reported recommending that the site should not be registered as a Town Green. At the time of the inquiry into the planning appeals between 13th and 16th January 2004, the claimant had not reached any decision on the Town Green Inspector's report.
9. Against this background of a dispute as to the public's right to use the site for recreational purposes, the Inspector asked this question in paragraph 6:

"What are these appeals about? It seems there has been something of a 'tug of war' over the site. Local residents who previously enjoyed using it as an amenity area have sought to ratify such use. There were legal proceedings. Later an application for Town Green status led to a public inquiry. Following the Inspector's report the City Council's ultimate decision is yet to be made. I have noted all the history. It provides insight. But I do not consider it has crucial relevance to my task. The Town Green application will take its course. Meanwhile I have to consider the proposals on their present planning merits."

10. He continued in paragraph 7:

"The Council contends that the development would involve the loss of an area of open space which is of substantial amenity importance and value to the local community. It relies on relevant planning policies. Local residents recall their enjoyment of the site. They proclaim their fervent desire for its use as a publicly accessible amenity to be revived. This brings me to the heart of the matter. The first main issue is whether the proposals would result in the loss of an open space that should, having regard to planning policy, be retained."

11. The second main issue identified by the Inspector related to the design of the proposed buildings (reason for refusal number 2). The Inspector resolved that issue in the second defendant's favour, and the claimant does not challenge that aspect of the Inspector's decision in relation to appeals (A) and (B). Moreover, no criticism is made of the way in which the Inspector dealt with the policies referred to in reason 1 of the reasons for refusal. He said that the site was not defined as an important site under policy NE1 (II), and fell to be considered under NE1 (IV). In paragraph 15, the Inspector noted that a new version of the Bristol Local Plan was at an early stage of preparation. In that plan, it was proposed that the site should be defined as under policy NE1 (II) as an important open space. There had been objection to that policy and the Inspector recorded:

"The Council agrees that only limited weight can now be given to the draft policy and this new definition."

12. Against this factual and development plan policy background, the Inspector set out the reasons for his decision in favour of the second defendant on the first main issue in paragraphs 20 to 30 of his decision letter:

"20. On the first issue, the Council argues that the site became a de facto open space and an important local amenity. Its loss to make way for development is therefore resisted. The Council considers the site should have protection under Local Plan policy NE1 (IV) because of its amenity value. Local residents are of like mind. They recall the years during which they made use of the site. They cherish it as a community asset. They emphasise its natural qualities. They want me to take heed of the benefits and visual characteristics of the site as it was, not see it as it is now.

"21. From all I have heard and seen, I have no difficulty visualising the previous appearance of the site. I comprehend how local residents enjoyed it. The colonised it unconventionally and so it became a facility different to the other neat green spaces woven into the built framework of Clifton. I admire the zeal of those who call it Granby Green, who have turned it into a cause -- perhaps even a crusade -- and who have evidently found support within the local community. The evidence is that its nature conservation value was slight, but I do not doubt that the site did have amenity value conferred on it.

"22. However, I cannot shut my eyes to present reality. This is not now an amenity open space. It has reverted to vacant land, declining into dereliction. Access by local residents is prevented. The appellant makes plain that control of the site will no longer be ceded, and in future ownership will continue to be asserted with determination. The ugly security fence will stay. Despite the Council's suggestions to the contrary -- questioning whether it is permitted development, mentioning the possibility of discontinuance action -- I have heard nothing to persuade me there is any likelihood of it being removed.

"23. I agree that no credit should be given when the closure of recognised amenity land is a deliberate ploy to subvert a policy that might otherwise bar development. But in my opinion that is not the case here. The site's unauthorised amenity use lasted for a while. It was opportunistic, and went unchallenged. Eventually it was stopped, as an assertion of the land owner's rights. To my mind this use was a phase in the history of the street block. Is it likely to be revived if I dismiss the appeals? Certainly not in the near future. The Council hints at the possibility of compulsory purchase, but says this would not arise until after the outcome of the Town Green application and the inquiry into the new draft Local Plan. And I foresee resolute resistance to that possibility.

"24. How then should the site be characterised now? By reference to the definition in Annex C of Planning POlicy Guidance Note 3: Housing (PPG3), the Council maintains it is not previously-developed land, that is to say land with a presumption in favour of development. I disagree. The buildings have gone, but their earlier existence is unmistakable. The landform reveals their previous imposition, as does the gap in the street block. Moreover, to my mind it is an academic question as to whether the remains have blended into the landscape to the extent that the site can be considered part of the natural surroundings. I consider this an archetypal brownfield site, an obvious candidate for development.

"25. Referring again to the words of Annex C, is there a clear reason that could outweigh the redevelopment of the site, such as its amenity use? In the same vein, is there any justification for the Council's reliance on Local Plan policy NE1 (IV)? It criticises the appellant for not having undertaken an assessment to show this land is surplus to amenity requirements, a precautionary step called for in PPG17: Planning for Open Space, Sport and Recreation. Local residents emphasise the convenience of the site, the high proportion of people living nearby in accommodation without gardens and the distance of alternatives.

"26. The Council has not done an assessment either, making its policy NE (II) definition of the site in the new draft Local Plan seem rather arbitrary. Be that as it may, the appellant has produced a plan and snapshot descriptions of green spaces within the radius of a 10-minute walk. I saw that many are private spaces, formally related to buildings. I do not think it is logical to expect the appellant to show this land is surplus to amenity requirements. Though residents took the opportunity to make use of it, there is no following presumption that it was ever a requirement. Publicly accessible, informal play areas are not at all typical, due to Clifton's historic origins.

"27. Moreover, it should not be forgotten that in addition to the building there would be a new formal public open space on the corner of the site. This could be extended along Cumberland Place by the addition of site C, depending on the Council's goodwill as landowner. The Council says this would not be a satisfactory replacement for what went before. Others are more derogatory. But it might be said that something is better than nothing. In my view it would be a well-sited and substantial asset. I consider its provision would be very much in tune with Local Plan policy NE12 and its preamble.

"28. Ultimately I return to the words of Local Plan policy NE1. The preamble mentions the importance that open land can acquire because it is especially valued by people. Local residents made use of this site, and clearly they retain considerable affection for it. It had amenity value.

"29. But now I see a site that has no amenity value, and a highly doubtful prospect of being returned to amenity use. On the other hand, it obviously lends itself to development. This would largely replace the original buildings, and help fill this toothless gap in the street block. In all the circumstances, I do not consider a valid case has been made for the site's protection under Local Plan policy NE1 (IV).

"30. On the first issue, taking account of planning policy, I conclude that the proposals would not result in the loss of an open space that should be retained. I am in no doubt that a suitable residential scheme could benefit the townscape in this part of the Clifton conservation area."

13. On behalf of the claimant, Mr Brown challenged the Inspector's decision on two grounds. He submitted that the Inspector erred firstly in his approach to PPG17 and secondly in his approach to the definition of previously-developed land in Annex C to PPG3.
14. Taking the latter criticism first, Annex C defines previously-developed land as follows, for the purposes of PPG3:

"Previously-developed land is that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings) and associated fixed surface infrastructure. The definition covers the curtilage of the development. Previously-developed land may occur in both built up and rural settings ...

"The definition excludes land and buildings that are currently in use for agricultural or forestry purposes, and land in built-up areas which has not been developed previously, (eg parks, recreation grounds, and allotments -- even though these areas may contain certain urban features such as paths, pavilions and other buildings). Also excluded is land that was previously developed but where the remains of any structure or activity have blended into the landscape in the process of time (to the extent that it can reasonably be considered as part of the natural surroundings), and where there is a clear reason that could outweigh the re-use of the site -- such as its contribution to nature conservation -- or it has subsequently been put to an amenity use and cannot be regarded as requiring redevelopment."

15. The issue was not whether the site fell within the definition of previously-developed land in the first paragraph in Annex C -- plainly it did, since it had been occupied by permanent structures -- but whether it was excluded from that definition because if fell within one of the categories described in the second paragraph.
16. Mr Brown submitted that in concluding in paragraph 24 of the decision letter that it was an "academic question" whether the remains of the buildings had blended into the landscape to the extent that the site could be considered part of the natural surroundings because "there are no natural surroundings", the Inspector had either misapplied the guidance of Annex C or reached an irrational conclusion. Annex C contemplated that sites may be treated as "greenfield" sites even though they were in urban areas. On the Inspector's approach, no piece of land in an urban area could revert to a "greenfield" site because there would be no "natural surroundings".
17. He submitted that it was perverse of the Inspector to say that a previously-developed urban site could only blend into the landscape in such a way as to lose its previously-developed status if it was adjacent to some other area of greenfield land. That was the practical consequence of the Inspector's approach in paragraph 24 of the decision letter.
18. I do not accept those submissions. Annex C is not to be applied in a mechanistic way. Deciding whether a particular site is "an archetypal brownfield site" will necessarily involve a degree of planning judgment. The Inspector made a site visit on 16th January. As a result of that visit, he concluded that the evidence of the earlier existence of the buildings on the site was "unmistakable". The landform revealed their previous existence, as did the gap in the street block. The remains had not therefore blended into the landscape so that it could reasonably be considered part of the natural surroundings.
19. In concluding that there were no "natural surroundings" in any event the Inspector was not purporting to lay down some principle of general application relating to all urban areas, he was considering a particular "toothless gap" in a street block in what he described as a "intensely urban" area. There may well be what can fairly be described as "natural surroundings" within other built-up areas that are less intensely urban. Applying his planning judgment, the Inspector concluded in essence that it simply made no sense to describe this particular site as having:

"Blended into the landscape ... to the extent that it can reasonably be considered as part of the natural surroundings."

20. Having inspected the site, the Inspector was entitled so to conclude.
21. The Inspector then considered whether there was any clear reason that could outweigh the re-use of the site. The only issue under that head was the Council's reliance on Local Plan policy NE1 (iv). That leads me on to Mr Brown's first and principal ground of challenge. In advancing the Council's first ground of refusal in his closing submissions, the claimant's advocate relied on paragraph 10 of PPG17. Paragraph 10 is in the following terms:

"Existing open space, sports and recreational buildings and land should not be built on unless an assessment has been undertaken which has clearly shown the open space or buildings and land to be surplus to requirements. For open space, 'surplus to requirements' should include consideration of all the functions that open space can perform. Not all open space, sport and recreational land and buildings are of equal merit and some may be available for alternative uses. In the absence of a robust and up-to-date assessment by a local authority, an applicant for planning permission may seek to demonstrate through an independent assessment that the land or buildings are surplus to requirements. Developers will need to consult the local community and demonstrate that their proposals are widely supported by them ... "

22. The Annex to PPG17 contains a number of definitions. Open space is defined in the following terms:

"1. Open space is defined in the Town and Country Planning Act 1990 as land laid out as a public garden or used for the purposes of public recreation, or land which is a disused burial ground. However, in applying the policies in this Guidance, open space should be taken to mean all open space of public value, including not just land but also areas of water such as rivers, canals, lakes and reservoirs which offer important opportunities for sport and recreation and can also act as a visual amenity.

"2. The following typology illustrates the broad range of open space that may be of public value:

"(ii) natural and semi-natural urban greenspaces -- including woodlands, urban forestry, scrub, grasslands (eg downlands, commons and meadows), wetlands, open and running water, wastelands and derelict open land and rock areas (eg cliffs, quarries and pits);

"(v) amenity greenspace (most commonly, but not exclusively in housing areas) -- including informal recreation spaces, greenspaces in and around housing, domestic gardens and village greens ..."

23. Reference was also made to paragraphs 11 and 14 of PPG17. Paragraph 11 is concerned with the recognition of open space, sports and recreational facilities of high quality or particular value to a local community in appropriate policies in development plans. The Inspector had noted that the site in the present case was not so protected in the statutory Local Plan.
24. The second sentence of paragraph 14 states:

"Even where land does fall within the definition of previously-developed, its existing and potential value for recreation and other purposes should be properly assessed before development is considered."

25. It is clear that the Inspector did consider not merely the existing use of the site but also its potential for recreation. In paragraph 23 he asked himself the question whether the amenity use of the land was likely to be revived if he dismissed the appeals, and answered:
26. "Certainly not in the near future."
27. He returned to that issue in paragraph 29, saying:

"But now I see a site that has no amenity value and a highly doubtful prospect of being returned to amenity use."

28. Mr Brown's criticism therefore focuses upon the manner in which the Inspector dealt with the policy advice contained in paragraph 10 of PPG17. He submitted that the Inspector either failed to take the policy into account or misinterpreted it or reached a perverse conclusion or gave inadequate reasons for concluding that the policy did not apply.
29. In my judgment, none of these criticisms is justified. The Inspector plainly had regard to the advice in paragraph 10 of PPG17. He expressly referred to the submission made on behalf of the claimant that the second defendant had not conducted an assessment of the kind described in paragraph 10. It is to be noted that the failure to conduct such an assessment had not formed any part of the first ground for refusal and it would appear that this was simply a submission made on behalf of the claimant at the inquiry. Nevertheless, it is plain that the Inspector considered that submission.
30. In addition, in the concluding sentence of paragraph 25, the Inspector referred, not for the first time, to the views of the local residents. Thus the Inspector was well aware that there had not been an assessment of the kind described in paragraph 10, and also he knew that the proposals were not "widely supported" by the local residents. That, of course, did not mean that planning permission had to be refused.
31. The policy advice in PPG17 is of general application. It was therefore necessary for the Inspector to use his planning judgment in applying the policy advice to the particular circumstances of the case before him. Having done so, he did not consider that the lack of an assessment as described in paragraph 10 of PPG17 was fatal to appeals A and B. He firstly made the point that the claimant had not carried out any assessment. This was therefore not a case where a local planning authority was arguing upon the basis of its own assessment that there was a requirement to retain the site for open space purposes. At best, it was being submitted on behalf of the claimant that planning permission should be refused because the second defendant had not done its own assessment to demonstrate that the land was surplus. The Inspector noted that the second defendant had produced a plan and snapshot descriptions of green space within the radius of a 10-minute walk, so there was some information as to the availability of open space locally.
32. It had been accepted by the second defendant's planning witness that this snapshot was not an assessment of the kind described in paragraph 10. At the inquiry the snapshot had been criticised by the claimant on that account. So the Inspector had to consider what force there was in this criticism given the particular circumstances of this site.
33. He had already made the point that this was not the closure by a land owner of a piece of "recognised amenity land". The background to the appeal before him was that the public's right to use the site for amenity purposes was in dispute. The Town Green Inspector had recommended that the site should not be registered as a Town Green. Against this background, the Inspector had to form his own judgment as to the prospects of the site being returned to amenity use if appeals A and B were dismissed.
34. He was entitled to conclude that it did not follow from the fact that the public had for some years used the site that it was "required" for amenity or open space purposes. Again in so concluding, the Inspector was not purporting to lay down some proposition of broad application, he was simply considering the particular circumstances of this site in a part of Bristol where he also noted that "publicly accessible informal play areas are not at all typical".
35. The Inspector made the further comment that the proposed public open space within appeals A and B, if linked to the public open space proposed in appeal C (on Council-owned land) would be "a well sited and substantial asset".
36. For these reasons, he, in effect, did not see any force in the Council's criticism of the second defendant's failure to carry out a paragraph 10 assessment in the circumstances of this particular case.
37. Although paragraph 10 of PPG17 has been given prominence in the submissions made by Mr Brown in this application, it has to be remembered that the fact that a paragraph 10 assessment had not been carried out was merely part of the overall picture under the first main issue. The principal test was that set out in the statutory development plan, policy NE1 (IV). It was for that reason that the Inspector returned to that policy issue in paragraph 29. Taking into account all of the circumstances, including the fact that there had been no paragraph 10 assessment, he concluded that a valid case had not been made out for the site's protection under policy NE1 (IV).
38. The submissions in the skeleton arguments tended to range far and wide and to concentrate on matters of definition, whether the site was "an existing open space" for the purposes of paragraph 10, and whether it could be said to be an open space "of public value" in terms of the definition of open space in the annex to PPG17. Mr Brown referred me to a number of other appeal decisions to which the claimant's advocate had also referred the Inspector. He submitted that the Inspector's approach would allow the proverbial coach and horses to be driven through paragraph 10 by enabling land owners, by the simple expedient of fencing their land and denying the public access, to oust the policy advice in PPG17.
39. I disagree. It is plain from the decision letter that this appeal turned very much on its own particular facts. As the Inspector noted when seeking to define the main issues, there had been something of a "tug of war" over this site. The right to use it for the purposes of public recreation was very much in dispute. Whilst the Inspector accepted that the site had had amenity value in the past, when he saw it on the site inspection it had ceased to have any amenity value, and he considered that it could properly be described as "a toothless gap in the street block".
40. The Inspector very sensibly did not get bogged down in a legalistic debate about the definitions in PPG17. Instead, he specifically considered the complaint advanced on behalf of the Council; that the second defendant had not carried out a paragraph 10 type assessment. He considered whether that criticism had any real force on the particular facts before him, and concluded (for the reasons given in paragraphs 25 and 26) that it did not.
41. In my judgment, the Inspector's pragmatic approach is not merely intelligible, it cannot possibly be said to be unreasonable as a matter of judgment. As I have said, whether or not an assessment was necessary was but one element of the first main issue as defined by the Inspector. The Inspector rejected the Council's first ground of refusal. He was entitled to do so.
42. For these reasons, this application must be refused.