Neutral Citation Number: [2009] EWHC 1058 (Admin)

Case No. CO/12323/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 20th March 2009
 
B e f o r e: 

MR C MG OCKELTON 
(Sitting as a Deputy High Court Judge)
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Between: 
THE QUEEN ON THE APPLICATION OF EAST DORSET DISTRICT COUNCIL 
Claimant

v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Ms L Busch (instructed by Treasury Solicitors) appeared on behalf of the Claimant 
Ms C Parry (instructed by Sharpe Pritchard) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	THE DEPUTY JUDGE:  The bungalow at No 329 Wimborne Road West, Stapehill is Mr Elford's house.  It is within the Green Belt.  When the Green Belt was designated, in 1980, there was a bungalow of 80 square metres at that address.  The present bungalow was built in 1994.  It has, or it had before it was extended, an area of 137 square metres.  The rebuilding in 1994 had planning permission.  One of the conditions of that planning permission was as follows:  
"Notwithstanding the provisions of the Town and Country Planning General Permitted Development Order 1995 or any subsequent re‑enactment thereof no extensions to the property shall be constructed without express planning permission first being obtained."
2.	In 2006 Mr Elford extended his house by building a conservatory.  It has an area of 30 square metres.  So the bungalow as a whole is now 167 square metres in area.  Retrospective planning permission was sought in 2008. East Dorset District Council ("the Council") refused planning permission and issued an enforcement notice requiring the extension to be removed and the previous condition of the property reinstated.
3.	The basis of the refusal of planning permission was that the replacement bungalow itself of 1994 represented a significant increase in size over the original bungalow in existence in 1980, and that the conservatory extension represented a disproportionate increase in the size of the bungalow and materially changed its impact on the Green Belt, and that no special circumstances had been shown.  Therefore, it was concluded, the proposed or rather actual extension was contrary to Policy GB3 of the East Dorset Local Plan 2002 ("GB3") and the advice contained within Planning Policy Guidance Note 2 Green Belt ("PPG2").  
4.	In order to see why the Council put its decision in that way, one needs to look at those two documents.  PPG2 is Government Guidance to planning authorities.  After setting out the role of Green Belts in preventing urban sprawl and noting that their most important feature is openness, it provides detailed guidance on a number of matters including control over development.  For present purposes the relevant paragraphs are these, which I will read omitting irrelevant parts:  
"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. 
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.
... 
3.4 The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes: 
... 
• limited extension, alteration or replacement of  existing dwellings (subject to paragraph 3.6 below);
...  
3.6 Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts.  The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces.  Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable."   
GB3 is part of the Council's policy in Green Belt areas.  The relevant passage in the 2002 Local Plan is headed "Extensions and Replacement Dwellings in the Green Belt" and I need to read it almost in full:  
"6.99 The following policy provides a framework for considering proposals to extend or replace existing dwellings.  It would clearly be contrary to the purposes of the Green Belt to allow a succession of  'limited' extensions which would cumulatively form substantial extensions to an existing building.  
6.100 Government advice and the general policy towards development in the Green Belt which is set out above now permit 'limited' but not 'disproportionate' extensions to existing dwellings.  Policy towards replacement dwellings under national policy advice is that the new dwelling may not be 'materially' larger than that which it replaces.  
6.101 Over the past decade, when extensions of up to 50% of the floor area of existing dwellings have been permitted, experience has shown that there can be a substantial impact and change of character both in the individual case and cumulatively.  This has been contrary to the essential purpose of Green Belt policy, that the land should remain open and rural in character.  The impact has been particularly noticeable in the case of replacement dwellings where almost invariably the height and bulk of the new building has been substantially greater than the building it replaced.  
6.102 Prior to the Inspector's Report the Council was using the 50% principle set out in the above paragraph as a policy determining whether an extension and replacement were disproportionately large in relation to the openness of the Green Belt.  The Council will determine such applications on the basis of the policy set out below judging proposals on whether their impact is proportionate or disproportionate in terms of the openness of the Green Belt and will only use as a general guideline whether the extension is greater than 50% or 140 sqm of the gross residential floor area of the dwelling as it existed when the Green Belt was designated on 5th February 1980.  The figure of 140 sqm represents the size of dwelling that the Council considers can reasonably provide for modern standards of living."  
6.103 relates only to garages and I will not read it. 6.104 has the heading. 
"Policy GB3: 
Within the Green Belt, extensions to or replacement of existing dwellings will only be allowed where:
 (a) the extension or the replacement dwelling does not materially change the impact of the dwelling on the openness of the green belt, especially through its height or bulk; and
 (b) the size and scale of a proposed extension does not dominate the existing dwelling;"
and (c) [which again relates only to garages].
5.	Before going on to say how these proceedings arise, I will mention two matters of interpretation of those documents that are established as a matter of law and on which there is no dispute now.  First, the impact of PPG2 and indeed its implementation by planning authorities is in terms that the primary question is whether a development is inappropriate.  As Sullivan J put it in Doncaster Metropolitan Borough Council v Secretary of State of Environment of Transport and Regions [2002] JPL 1509 at paragraph 68: 
"... it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt.  That policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of many permissions would destroy the very qualities which underlie Green Belt designation.  Hence the importance of recognising at all times that inappropriate development is by definition harmful, and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the functions of the green belt."  
6.	Secondly, the reference to the "original building" in PPG2 and therefore also in GB3, is a reference to the building on the site at the date of the designation of the Green Belt, in this case 1980.  So much follows from the decision of Cranston J in R (Dacorum Borough Council) v Secretary of State for Communities and Local Government and Mr and Mrs Alan Hutchinson [2009] EWHC 304 (Admin).  
7.	Mr Elford appealed against the refusal of planning permission and against the issue of the enforcement notice.  His appeals were decided by the Inspector appointed by the Secretary of State for Communities and Local Government.  The Inspector made a site visit and considered representations in writing.  On 26th November 2008 he issued his decision.  He allowed the appeal against the enforcement notice.  He allowed the appeal against the refusal of planning permission and he granted planning permission.  
8.	The Council challenges those decisions.  I thus have before me an application under section 289 of the Town and Country Planning Act for permission to appeal against the Inspector's decision allowing the appeal against the enforcement notice, with a substantive hearing to follow if permission is granted, and an appeal under section 288 against the Inspector's decision allowing the appeal against the refusal of planning permission.  The issues are identical.  The applicant and appellant is the Council.  The Secretary of State is the first defendant.  Mr Elford is the second defendant.  He has taken no part in these proceedings other than to send the court a bundle of press cuttings, which I have read.  
9.	The Inspector began the reasoning of his decision by describing the conservatory extension and summarising PPG2 and GB3, in terms that are I think not now challenged.  He continued as follows.  At paragraph 5: 
"The Council claim that the starting point in terms of what constitutes the original dwelling is not the present dwelling that was built by virtue of planning permission granted in 1994 but the pre‑existing bungalow that it replaced.  I note from the annotations on plans submitted that the 'original' bungalow had a floor area of about 80 sqm without the porch.  The present bungalow, without the conservatory, is said by the Council to be 137 sqm in floor area which they calculate as being a 77% increase.  From my own calculations the increase, based on these floor areas, was about 71%.   
Although PPG 2 does not include a definition for the word 'original', I consider that it is right to have regard to local adoptive policy in interpreting the meaning in the local context.  However, it is evident from the supporting text to Policy GB3 referred to above that the base date of 5 February 1980 (for what was original) and the 50% or 140 sqm figures should only be used as general guidelines.  It is the tests and the policy itself which should be used to judge and determine applications."  
Paragraph 6:  
"In terms of criterion (a) of Policy GB3, the conservatory has covered an area of former patio and would add to the bulk of the building.  However in practical terms, given its discrete position and limited height, below the ridge of the host building, I do not consider that it has materially changed the impact of the dwelling on the openness of the [Green Belt].  As regards criterion (b), given the limited dimensions of conservatory and its location, I do not consider that it dominates the existing dwelling.  On this basis, I conclude that the terms of Policy GB3 are met."  
Paragraph 7: 
"The addition has increased the floor area to 167 sqm.  When compared with the floor area of the pre‑existing bungalow this is just over 100% increase which is well above the 50% guideline.  However, the floor area would only be 27 sqm (19%)  above the other guideline of 140 sqm which the Council claim provides a reasonable size of property for modern living.  In my view this is not substantially greater and it is in any case only a guideline.  In these circumstances, I conclude that the conservatory addition has not resulted in a disproportionate addition above the size of the original dwelling that previously existed.  Bringing these points together, and having regard to the advice in PPG 2, I find that the extension is not inappropriate development in the [Green Belt]."
10.	The Inspector went on to decide that the conservatory had no impact on the openness or the visual amenities of the area.  He concluded by saying that, having decided that the development complied with GB3 and the advice on extensions in PPG 2 he did not need to assess whether there were very special circumstances, and that in his view the development was not inappropriate.
11.	In these proceedings the Council emphasises that it does not challenge the assessments that the Inspector made in paragraph 6. Those were matters of planning judgment for the Inspector to make.  It claims that the Inspector erred in his treatment of the various figures as to area and his judgment on them in paragraph 7. It says that he failed to consider the application of PPG2 correctly, and that he failed to understand and apply GB3 correctly, or that if he did understand them correctly, he failed to give reasons for not following them.
12.	There is a measure of agreement between Miss Parry, who represents the Council, and Miss Busch, who represents the Secretary of State.  Both accept the importance of the guidance in PPG 2 at paragraph 3.6, that extension of dwellings in Green Belts is not inappropriate "provided that it does not result in disproportionate additions over and above the size of the original building", that is to say over and above 80 square metres in the present case.  Both accept that the Inspector was bound to decide the appeal by reference to Policy GB3, as set out in paragraph 6.104, which I have cited.  They differ in their approach to paragraphs 6.101 and 6.102, those paragraphs being in the preamble to the policy itself.  But they also agree that paragraph 6.102 is singularly difficult to read.  The phrase "greater than 50% or 140 sqm of the gross residential floor area" appears to make no sense at all.  The last sentence of that paragraph shows why 140 square metres is regarded as relevant by the Council.  It is a size of dwelling which is apparently regarded as the minimum appropriate in modern conditions.  It looks as though whatever the preceding sentence was supposed to read, the implication was that a development extending property or replacing property up to a total of 140 square metres would not be regarded as inappropriate.  To that extent, the figure of 140 square metres must be regarded as an absolute figure for the purposes of the policy.  By contrast the 50 per cent figure is necessarily comparative.
13.	Miss Busch reminds me that in any event these paragraphs do not form part of the policy.  The policy itself is that set out in paragraph 6.104.  Miss Busch points out, and I accept, that paragraph 6.101 is a reference to a previous policy, under which apparently development of the Green Belt was not regarded as inappropriate if it did not amount to an extension of more than 50 per cent of the existing floor area.  The paragraphs under examination make it clear that that policy no longer applies; and that the new policy is that set out below, that is to say in paragraph 6.104.  The figures and the comparisons in paragraph 6.102 are used in constructing a "general guideline" rather than in formulation of a policy.  Miss Parry is bound to accede to that; but she argues that the paragraphs when read together and properly also indicate that it is intended to be more difficult to meet the requirement of GB3 (including its preamble) than the 50 per cent guidance as she calls it.  She puts it in this way in her skeleton argument:  
"This is clear from paragraph 6.101 which explains that the 50% test was permitting buildings which were cumulatively having a deleterious effect on the green belt.  Therefore, the light in which the Inspector should have considered the policy tests was that it was unlikely that anything over 50% of the size of the original building would be permitted.  Although the 50% figure was for guidance, it is clear that the context of this was that this was because extensions under 50% may still not meet the test, rather than because it was likely that buildings over 50% would meet the test.  This is not the approach the inspector took, and in failing to do so he did not correctly understand and apply the Claimant's policy." 
14.	I cannot accept the argument put in that way.  In my judgment it is clear that the Policy GB3 represents a retreat from a policy under which an extension of less than an additional 50 per cent of an existing building was regarded as not inappropriate.  Paragraphs 6.99 to 6.101 make clear the reason for that:  over the years a property as extended a number of times might entirely change its character.  It follows that GB3's abandonment of the previous policy should not be interpreted so as generally allow an extension of 50 per cent (or more) of the area of an existing building.  It is, however, also clear that the abandonment of the old policy was not intended to remove restriction on development by reference to the size of the existing building.  To regard it in that way would be entirely to misunderstand the change.  
15.	But that does not help very much in interpreting the guideline because the guideline uses, by its implicit reference to PPG 2, an entirely different comparator.  The guideline deals with the difference between the building as proposed and the building in 1980, rather than the difference between the building as proposed and the existing building.  Applying the difference to the facts of the present case, the previous policy would apparently have allowed an extension of anything up to 68.5 square metres, that is 50 per cent of 137.  The withdrawal of that policy makes it clear that a development of that size might well be regarded as inappropriate now.  The guideline again uses a "plus 50 per cent" test, but it requires a comparison to be made between the 80 square metres of 1980 and the 167 square metres of 2008. The guideline does not say either explicitly or by its context that a development of over 50 per cent of  the 1988 area will be, or is likely to be, regarded as inappropriate in the same way that under the old policy a development adding more than 50 per cent of the existing building would have been.  The guideline is a guideline.  The comparison set out in it is to be taken into account.  It seems to me that the Inspector undoubtedly did that, as paragraph 7 of the decision letter amply shows.
16.	Miss Parry also submits that the guideline, although expressed in the singular, amounts to two alternatives.  She says that if the development results in a dwelling that is over 140 square metres, the reference to that size in the guideline ceases to have any relevance at all to the application under consideration.  In those circumstances, she says the consideration of the guideline is confined to the comparison between the 1980 size and the proposed size.  She therefore argues that the inspector's reference in paragraph 7 to the floor area being only 27 square metres (19 per cent above the other guideline of 140 square metres) was an error.  
17.	Again I do not accept that.  There is no doubt that the impact of paragraph 6.102 is that developments up to 140 square metres will normally be not inappropriate.  I regard it as obvious that in assessing whether a development is inappropriate a decision maker who finds that a proposal is not within a guideline, is entitled to consider how far outside the guideline it falls.  In the present case the Inspector did exactly that.
18.	For those reasons, I find that the Inspector did not err in law in reaching the conclusions he did.  I refuse permission to appeal under section 289 and I dismiss the appeal under section 288.  
19.	MISS BUSCH:  Thank you very much.  My Lord, I ask for an order of our costs to be summarily assessed. 
20.	THE DEPUTY JUDGE:  Miss Parry, is there anything you want to say about that? 
21.	MISS PARRY:  My Lord, no.  In the circumstances I cannot resist, the principle of costs and those figures. I do not have any comment on the figure.  
22.	THE DEPUTY JUDGE:  I make an order in that sum which is £4,231.  
23.	MISS BUSCH:  Thank you very much.