QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
| Anthony Hobson
- and -
The Secretary of State for Communities and Local Government
Guildford Borough Council
Mr Robert Brown
Mrs Marlene Brown
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David Forsdick (instructed by the Treasury Solicitor) for the First Defendant
Hearing date: 22nd April 2009
Crown Copyright ©
Sir Thayne Forbes:
The Factual Background
"The proposed replacement dwelling by virtue of its scale, bulk and increase in floor area, combined with the significant increase in height would result in a replacement dwelling that would be materially larger than the dwelling it seeks to replace. This would result in a detrimental impact on the openness of the Green Belt and the rural character of the area. As such the proposal would be contrary to the provisions of policies RE2 and H6 of the Guildford Local Plan (as saved by CLG direction on 24 September 2007) and policy LO4 of the Surrey Structure Plan 2004 (as saved by CLG Direction on 21 September 2007) and the provisions of PPG 2 "Green Belts".
1. I allow the appeal, and grant planning permission for a detached two storey five bedroom dwelling with attached double garage, following the demolition of the existing dwelling at "Merrow Down", The Warren, East Horsley, Surrey KT24 5RH in accordance with the terms of the application, Ref 08/P/00197, dated 31 January 2008, and the plans submitted with it, subject to the conditions set out in the attached schedule."
The Legal Framework and Relevant Policies
"This distinction between whether something is a material consideration and the weight it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
"3. Control Over Development
Presumption against inappropriate development
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 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.
REPLACEMENT DWELLINGS IN THE COUNTRYSIDE
Outside the urban areas of Guildford and Ash and Tongham replacement dwellings will be permitted provided that the development:
Does not result in the loss of a small dwelling;
Is in scale and character with the area;
Has no unacceptable effect on the amenities enjoyed by the occupants of buildings in terms of privacy and access to sunlight and daylight;
Has no unacceptable effect on the existing context and character of the adjacent buildings and immediate surroundings.
In addition to the above criteria, outside the identified settlements and within the Green Belt there will also be a presumption against the replacement of existing dwellings with dwellings which are materially larger than those they replace.
Green Belt Policy
5.33 It is not considered desirable to state categorically what maximum size of replacement dwelling outside settlements is permissible given the wide range of circumstances to which the policy applies, other than the general requirement that they should not be materially larger than the dwelling they replace. The principal consideration will be the potential impact of the replacement dwelling on the openness of the Green Belt and the visual amenities of the Green Belt in terms of its size, scale, design, materials and character."
"… whether the proposal represents appropriate development within the Green Belt, and if not whether there are any very special circumstances which overcome this harm and allow a judgement in favour of the proposal to be made."
It was also common ground that, in the circumstances of this case, the key question that the Inspector had to address in deciding whether the proposed development constituted appropriate development within the Green Belt was: is the proposed new dwelling "materially larger" than the existing dwelling that it is to replace ("the key question")?
"19. I do not accept the submission that Surrey Homes was wrongly decided. It follows that I do not accept the submission that when deciding whether the replacement dwelling is or is not "materially larger" than the dwelling it replaces, the local planning authority is solely concerned with a mathematical comparison of relevant dimensions.
20. However I do accept Mr Altaras's fall back submission that the exercise under paragraph 3.6 [of PPG2] is primarily an objective one by reference to size. Which physical dimension is most relevant for the purpose of assessing the relative size of the existing and replacement dwelling house will depend on the circumstances of the particular case. It may be floor space, footprint, built volume, height, width, etc. But, as Mr Lockhart-Mummery said in Surrey Homes
"… In most cases floor space will undoubtedly be the starting point, if indeed it is not the most important criterion."
It is one thing to say that in a case where the increase in dimensions is marginal in quantitative terms, some regard may be had to other matters "such as bulk, height, mass and prominence", it is quite another thing to set consideration of the physical increase in size to one side altogether, and, in effect, to substitute a test such as "providing the new dwelling is not more visually intrusive than the dwelling it replaces" for the test in paragraph 3.6 [of PPG2]: "providing the new dwelling is not materially larger than the dwelling it replaces."
"44. In my judgment the claimant is right to contend that this approach – to ask what harm would a particular replacement dwelling do in terms of its visual impact from public vantage points within the MOL – is the antithesis of the approach which should be adopted when deciding the threshold question: is this replacement dwelling appropriate development within Metropolitan Open Land? At the risk of repetition, the question is not whether the replacement dwelling would be more visually intrusive from the public realm, but whether it would be materially larger than the existing dwelling. That is principally a question of size, actual rather than perceived size. It is one thing to say that the perception of size may be relevant in deciding whether a measured increase in size is material, it is quite another to substitute an assessment of visual impact for a measurement of size. Although the perception of size may be relevant in marginal cases, the tail must not be allowed to wag the dog. On any basis it is impossible to avoid the conclusion that this replacement dwelling was materially larger, very much larger, than the existing house."
In my view, it is worth drawing attention at this stage to the relevant comparative dimensions that gave rise to Sullivan J's observations in the final sentence of paragraph 44 of his judgment, quoted above. Sullivan J dealt with these in paragraphs 23 and 24 of his judgment, as follows:
"23. Against this background, I turn to the comparative dimensions of the proposed replacement dwelling and the existing dwelling. In terms of floor space, the report told the committee members that the floor space of the existing dwelling was 186 sq metres and that of the replacement dwelling was 626 sq metres. The first of these figures was subsequently revised by the officer during the members' discussion of the report. The officer stated that the figure was closer to 146 sq metres, the figure that had been put forward by the claimant. … Thus there was at least a three-fold or a four-fold increase in floor space … In terms of built volume … there was almost a four-fold increase. In terms of footprint … there was a doubling of size. Considering the external paving alone … there was a five-fold increase in size.
24. Since the exercise is primarily an objective one by reference to size rather than visual impact, the replacement dwelling is plainly "materially larger" than the existing dwelling. …"
"7. The concept of "appropriate development" is well-established in the context of Green Belt policy. … The same policy approach is applied to land in the MOL. It follows that an important first step, or "threshold" question (as the judge described it), in relation to an application for development in the Green Belt or the MOL, is to decide on which side of the appropriate/inappropriate line it falls.
37. The words "replacement" and "not materially larger" must be read together and in the same context. So read, I do not think that the meaning of the word "material", notwithstanding its use in planning law more generally, can bear the weight which the authority sought to give it. Size as Sullivan J said is the primary test. The general intention is that the new building should be similar in scale to that which it replaces. The Surrey Homes case illustrates why some qualification to the word "larger" is needed. A small increase may be significant or insignificant in planning terms, depending on such matters as design, massing and disposition on the site. The qualification provides the necessary flexibility to allow planning judgment and common sense to play a part, and it is not a precise formula. However, that flexibility does not justify stretching the word "materially" to produce a different, much broader test. As has been seen, where the authors of PPG2 intend a broader test, the intention is clearly expressed.
38. For these reasons, which are in line with those of Sullivan J, I conclude that the council misunderstood and misapplied MOL policy. Had they properly understood the policy, in my view, they could not reasonably have concluded that a building more than twice as large as the original (in terms of floor space, volume and footprint) was not "materially larger".
The Decision Letter
6. It is not disputed that the site is within the Green Belt, so the content of Planning Policy Guidance Note 2: Green Belts (PPG2) is directly relevant. That document indicates that the replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Reliance will be placed on development plans to set out the local approach to considerations of this kind.
7. In this instance I consider the content of saved policy H6 of the Guildford Borough Plan Adopted January 2003 (local plan) to be most relevant.
8. This policy relates directly to replacement dwellings and sets out various criteria which need to be met for proposals of this kind. Firstly, in my view the loss of a small dwelling would not occur, given the substantial level of accommodation offered by "Merrow Down". In addition, I consider that the proposed house would clearly be in scale and character with most of the other dwellings within The Warren which is typified by substantial detached houses of the kind proposed.
9. Many of the proposed design components, with which the Council does not take particular issue, reflect design features that are well represented elsewhere in the road and which are redolent or commonly found in this part of Surrey. The proposed building would be visually more interesting than the dwelling it would replace and would reflect the context and character of existing buildings and the immediate surroundings.
10. Furthermore, it is not alleged that the proposal would have any adverse impact on the living conditions of the occupiers of adjoining properties, other than some temporary discomfort when demolition and construction works were taking place. I noted the heavy screening afforded by existing landscaping which effectively prevents any harmful overlooking.
11. Whilst the proposed house would be taller than the existing building, it would generally reflect the height of other two storey houses within the road and so would not, in my view, appear to be unusual or distinctive in this regard. As indicated, it would also occupy essentially the same overall footprint as the existing house and garage, but the use of integral garaging and the slight re-alignment referred to in paragraph 5 above, would actually allow better separation between the proposed building and its side boundaries. Overall, the level of built frontage would decrease, allowing space and views to the side of the property.
12. This would improve the openness characteristics of the plot, although I accept that this would be counter balanced to some degree by the increased ridge height of the roof. Overall, the proposal might therefore be judged to have a neutral effect upon openness considerations at this Green Belt location.
13. The number of habitable rooms would not be appreciably different, although it is conceded that the proposed house would have a greater floor area and overall volume. However, the level of increase would not be unduly dramatic and the replacement house would appear to reflect the general pattern set by other similar cases within The Warrant in recent times, some of which at least were considered under the current development plan regime.
14. Some local residents also expressed concern about the potential for the roof void to be utilised for further accommodation in the future. That is of course only speculative, but such work, if it did occur, would not in any case increase either the volume of scale of the building. Controls over such work can be exercised via the removal of permitted development rights, allowing judgements on the efficacy of any such works to be brought before the local planning authority.
15. Taking all these factors into account I am lead to conclude that the proposal is not in conflict with policy H6, or by implication RE2 of the local plan. The dwelling although different from the existing property in design, layout, volume and height would not be materially larger overall than the dwelling it would replace. It would in fact be very similar to many existing properties within The Warren which sit quite comfortably within their setting, in terms of its scale, bulk and height. I am also content that the openness of the Green Belt would not be compromised. In these circumstances I consider the proposal to represent appropriate development within the Green Belt and as such to be consistent with the guidance set out in PPG2 and policy LO4 of the Surrey Structure Plan of 2004.
16. For the reasons set out above, and having had full regard to all other matters raised, I therefore conclude that this appeal should succeed."
The Grounds of Challenge
"(1) The Inspector erred when applying the policy test in PPG2 of whether the replacement dwelling was materially larger than the dwelling it replaces. In reaching his decision he failed to give primacy to the objective increase in size of the replacement dwelling and instead impermissibly took into account questions of visual appearance and visual impact. …
(2) The Inspector's reasons on the question of whether the replacement dwelling was or was not inappropriate development were inadequate in law and the Claimant is prejudiced thereby.
(3) The Inspector erred in applying condition 3 to the grant of planning permission. The effect of granting planning permission subject to that condition was that the later conversion of the loft space was not taken into account as part of the assessment of whether the dwelling was inappropriate development or not, when it ought to have been taken into account in answering that question."
The Parties' Submissions