QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|MICHAEL NORMAN HAGUE|
|BARBARA ANNE HAGUE||Claimants|
|WARWICK DISTRICT COUNCIL||Defendant|
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Ian Dove QC (instructed by Sharpe Pritchard) appeared on behalf of the Defendant
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"2.6 Once the general extent of a Green Belt has been approved it should be altered only in exceptional circumstances. If such an alteration is proposed the Secretary of State will wish to be satisfied that the authority has considered opportunities for development within the urban areas contained by and beyond the Green Belt. Similarly, detailed Green Belt boundaries defined in adopted local plans or earlier approved development plans should be altered only exceptionally. Detailed boundaries should not be altered or development allowed merely because the land has become derelict.
2.7 Where existing local plans are being revised and updated, existing Green Belt boundaries should not be changed unless alterations to the structure plan have been approved, or other exceptional circumstances exist, which necessitate such revision."
"3. The one-inch County Map will show the whole area of Green Belt falling within the County, apart from any areas covered by Town Maps. On the outer edges of a Green Belt it should be possible to choose a suitable boundary along roads, streams, belts of trees, or other features which can be readily recognised on the ground and which appear on the one-inch base map.
4. On an inner boundary, however, where the edge of the notation will mark a long-term boundary for development, treatment at a larger scale will be necessary. Where such boundaries fall in Town Map areas no difficulty of scale will arise; but where they do not, authorities are advised to adopt the 1:25,000 (approximately 2½") scale..."
"14.6.10... At the hearing the District Council accepted that the land is not exposed to a threat of development in this Plan period. Even if excluded from the Green Belt, the absence of an allocation, the greenfield nature of the site, and the District Council's SPD 'Managing Housing Supply would preclude residential development. Moreover, any future development of the site would not bring buildings any closer to Coventry than dwellings that exist in parts of Highland Road and Woodland Road."
Those are the two roads on either side, where there is existing development.
"But possible longer-term development would fill in a deep indent in the urban boundary. The perception would be of a much greater mass of development rolling down the hillside towards Coventry, presenting a more solid edge to the town. This would result in a serious loss of openness and harm to the rural setting of Kenilworth and give the impression of settlements merging."
If excluded from the green belt, it would not, despite having the present protection from development, have the greater protection that obviously applies to any development within the green belt. For example, even one residence would normally not be permitted within the green belt, let alone any housing development of any extent. It does not look feasible that there should be any other sort of development than residential, if there is to be any sort of development on this particular triangle, but I emphasise that that is not a matter which is material to my decision. It is possible that I am wrong in thinking that that is the reality.]
"3.1 Paragraph 2.6 of PPG2 state[s] that once the general extent of Green Belt has been approved "it should only be altered in exceptional circumstances". The Council does consider that exceptional reasons exist for amending the Green Belt boundary now. This is on the basis that there is no logic to why the Green Belt boundary was drawn to exclude this land in the first place and that excluded the site from the Green Belt now is an anomaly that should be corrected. This rebuttal proof will show that the relationship between the site and land immediately to the north (which is presently within the Green Belt) is so linked that the role and purpose of this existing Green Belt land would be compromised and prejudiced if this land was not also included within the Green Belt. This site fulfils the purposes of including land within the Green Belt set out in PPG2 and that once in the Green Belt can play a positive role in fulfilling some of the Green Belt objectives.
3.2 As the objector asserts, it is difficult to know precisely why the Green Belt boundary was drawn along the line that it was originally. The objector suggests that this may have been following a refusal of planning permission in 1971 for residential development on the site. Although the Council would agree that there appears to be no hard evidence as to why the Green Belt boundary in this location originally took the route that it did, it is understood that the line chosen was simply one which followed the administrative boundary of the (then) Kenilworth Urban District Council. In 1974, following changes in local government that brought about the creation of Warwick District Council, this boundary became that of Kenilworth Town, where it remains to this day. It is reasonable to assume therefore, that the Green Belt boundary was originally based on an administrative area, rather than being based upon sound planning principles."
"With the time that has elapsed it is difficult to know how the Green Belt boundaries in the vicinity of the Land first came to be proposed in the Green Belt Plan but in the light of the reasons for the Planning Refusal by Warwickshire County Council [that is the refusal in 1971 for the residential development] it is perhaps reasonable to assume that the decision to leave the Land out of the designated Green Belt was deliberate. The Land might have been expected to have been included within the Green Belt by the Green Belt Plan; a reasonable assumption to be made is that as, at that time, the Land was unnotated in the Review Town Map for Kenilworth the authorities charged with determining the Green Belt boundaries specifically decided that the Land should be omitted. The rationale for this decision seems likely to have been that the Land was located no further north than the then existing developed boundaries (formed by Woodland Road and Highland Road) of the town of Kenilworth. It should also be noted that the Kenilworth Parish boundary runs along the northern boundary of the Land which would make that boundary an entirely logical boundary for the Green Belt and particularly having regard to the fact that circular 14/84 counselled against Green Belt boundaries being drawn too tightly around existing built-up areas..."
"14.6.7 Previous objections have made the point that the District Council has not produced any evidence showing the existence of exceptional circumstances. The current situation on the ground is exactly the same as has appertained throughout Mr and Mrs Hague's ownership of the land, dating from 1957. In the objectors' view, the admission by the planning authority that the proposal is minor in nature implies that there are no exceptional circumstances. Issues as to the suitability of the revised Green Belt boundary only become relevant once the District Council has demonstrated such circumstances. In fact, the existing Green Belt boundary established as long ago as 1982 has proved to be robust. Moreover, policy with regard to the permanence of Green Belt boundaries has fundamentally remained the same through Circular 14/84 into PPG2 in both its 1995 and 1998 guises.
14.6.8. Looking first at the question of exceptional circumstances, the following points were decided in the Carpets of Worth case [Carpets of Worth Ltd and Wyre Forest District Council  2 PLR 84]. Firstly, the boundary of existing Green Belts in structure plans should not be altered, either way, except in exceptional circumstances, nor should adopted local plans be treated any differently. Secondly, the Court rejected any suggestion that the process of producing a new local plan was in itself an exceptional circumstance. Thirdly, because it directly prejudices landowners an extension to the Green Belt should not be brought into effect unless it can be justified directly for those purposes for which the Green Belt was designated. Fourthly, once a Green Belt has been established it must require exceptional circumstances to justify an alteration. The objections in respect of land at Highland Road/Woodland Road need to be examined in light of these considerations."
"14.6.9 I am satisfied that exceptional circumstances do exist for amending the Green Belt boundary in this location and that the District Council does not rely upon general planning concepts. There is no logic to the present boundary. It is an anomaly that should be corrected, and the nettle should be grasped now. I am in no doubt that if the Green Belt was being established around Kenilworth for the first time, this parcel of land would be included. The need to apply a consistent approach to Green Belt designation is, I feel, an exceptional circumstance. I agree with the District Council that the site has a clear visual and functional relationship with open, undeveloped land to the north. In my opinion, this amendment is not of such significance as to constitute a strategic alteration that should only be made through a review of the Regional Spatial Strategy. The reason why this land was originally excluded from the Green Belt is obscure. However, it is not unreasonable to conclude that it was based upon a purely administrative convenience in following the old Urban District boundary. That position has changed with revision of the local authority boundary. In terms of the Copas case [Copas v Royal Borough of Windsor and Maidenhead  1 P&CR 199], I consider that the fundamental assumption which caused the land initially to be excluded from the Green Belt has been clearly and permanently falsified by this later event. Its continuing exclusion from the Green Belt can, I believe, be properly characterised as an incongruous anomaly. If the correction of a past mistake is not regarded as an exceptional circumstance, then there would be no opportunity through PPG2 to put matters right. The preparation of a new Warwick District Local Plan is not in itself an exceptional circumstance. But it does provide the vehicle for addressing an inconsistency that has, in my view, prevailed for far too long and has unreasonably raised expectations as to future development potential. This leads on to the next consideration."
"14.6.11... While those representations do not amount to exceptional circumstances for altering the Green Belt boundary, they do demonstrate the strength of local feeling as to the need for protection of this sensitive tract of land."
"Notwithstanding the alternative proposals outlined above [that is, it should not, even if outside the green belt, be shown as being within the rural area, and thus subject to rural area policies], I conclude that the Green Belt boundary at Highland Road/Woodland Road should be amended to incorporate the objection site which is clearly rural rather than urban in character."
"2.48... I have not reached that conclusion lightly because I recognise the need for such boundaries to be permanent wherever possible. However, the most recent appeal decision justifies a very different perception of the site than that which prevailed when the present boundary was set. It also means, in my view, that the continued omission of the site from the Green Belt would be an incongruous anomaly."
It is the same phrase used as was used by the inspector in this case.
"39. It must, of course, be recognised that PPGs have no formal statutory force and are not to be construed and applied as if they had. The only statutory obligation on the Local Planning Authority (and in the present case, of course, on the Inspector) is to have regard to them. All this too was pointed out by Purchas LJ in the Carpets of Worth case (at p.88). That said, the Guidance must be given some reasonable meaning and be properly understood by those charged with forming the relevant planning judgment.
40. I would hold that the requisite necessity in a PPG 2 paragraph 2.7 case like the present - where the revision proposed is to increase the Green Belt - cannot be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event. Only then could the continuing exclusion of the land from the Green Belt properly be characterised as 'an incongruous anomaly'."
"4. I have undertaken research in relation to any earlier consideration by an inspector of any proposal to include this land within the Green Belt. Having done so, I can confirm that this is the first occasion on which an independent inspector had the opportunity to consider whether or not this land should be included within the Green Belt, and therefore the first time it had been subjected to independent scrutiny. In particular, it was not debated as part of the inspector's consideration of the Green Belt Local (Subject) Plan for Warwickshire or any subsequent plan until 2006."