HP Use Class
The majority of the uses covered by this section are unlikely to fall within a
class of the Use Classes Order. Class D1 Non-residential institutions includes
some leisure uses such as art galleries and museums, and D2 Assembly and
leisure is concerned only with indoor venues for entertainment and with indoor
and outdoor sports facilities. Probably Sui Generis.
Good Practice Guide on Planning for Tourism (2006)
Guidance on the approach to be taken to tourism development is currently set
out in the Good Practice Guide on Planning for Tourism (2006) which was not
cancelled by the NPPF. The guide places great emphasis on the benefits of
tourism to the national and local economy, and the social and environmental
well being of the whole country. The particular value of these benefits to rural
areas is noted. The guide recognises the role of the planning system in
facilitating the development and improvement of tourism in appropriate
locations and encourages a pro-active approach in order to achieve
expansion of this important industry. Examples of local authority best practice
in planning for tourism are given in the guide. The guide focuses on broad
principles that are relevant to most types of tourist development and does not
deal in detail with individual types of development. Key planning
considerations for all types of visitor and tourist developments are given as
location, design and fit with surroundings:
•
Location: this should be accessible, ideally by a variety of means of
transport, and not cause harm to a sensitive environment. New developments
should be as sustainable as possible in transport terms but the guidance also
recognises that there will be instances, some due to functional need, where
the choice of location cannot meet this objective.
•
Design: this should be attractive, functional and sustainable in terms of
energy efficient construction and operation, or involve the re-use of existing
buildings;
•
Fit with surroundings: development should conserve and enhance local
environmental qualities, whether that quality lies in the historic built
environment, natural landscape or nature conservation.
The good practice guide provides specific advice on tourism in rural areas. It
states that the provision of essential facilities for visitors is vital for the
development of tourism in rural areas and that policies should engender a
positive approach to rural tourism proposals, within the context of certain
principles:
•
“Wherever possible, tourist and visitor facilities should be housed in
existing or replacement buildings, particularly where they are located outside
existing settlements.
•
In statutorily designated areas they should seek to conserve and
enhance the qualities and features that justified the designation.
•
Large-scale tourist proposals must be assessed against the whole
range of sustainable objectives. This includes not only their transport
implications but also other sustainability considerations such as how they
assist rural regeneration and the well being of communities.”
Trends in rural tourism / magnet attractors / planning
So called “open-air leisure facilities” have increasingly developed in the
countryside in response to the growth in car ownership and motorway
development over the last 40 years. To begin with, safari parks become
possible and popular, often combined with the pressing need to diversify the
stately home business to attract maintenance income. This was followed by
the emergence of the theme park and the “heritage” industry. It is a common
feature of such attractions that they embody both “amusements” and more
“serious” exhibits, commonly historical recreations. The Flambards theme
park in Cornwall and Thorpe Park in Surrey are such examples. Steam
railways are another continuing fascination and the number of working
museums and reopened lines continues to grow. Agricultural practices past
and present and the exhibiting of rare breeds are also favoured themes, as
they can often fit more comfortably with policy promoting and diversifying the
rural economy.
The principles of sustainability are now a central thread running through
planning policy. An example of the evaluation of the sustainability of a major
new museum in the countryside is to be found in the following case. The SOS,
following call in, refused planning permission for the erection of a 4,475 sqm
building to house a collection of steam and mechanical organs, ruling that the
chosen 3.5Ha greenfield site in open countryside was inherently
unsustainable. The applicant stated that the Council fully supported the
scheme which would house a collection of national importance. The SOS,
however, decided that scheme was inappropriate to a countryside location
because it would generate a significant number of journeys by car and result
in the loss of high quality agricultural land, noting that the applicants had failed
to prove why the site was the only viable and suitable location to house the
collection, see Mid Bedfordshire 16/06/06 DCS No 100-044-058
Local need: whether additional visitor facilities beneficial?
A dilemma which may have to be tackled is whether a proposal is beneficial
as it takes pressure off a nearby site under threat from tourists or if it is
harmful as it attracts more tourists to an area generally. In the Avebury Manor
enforcement appeal detailed at 18.451 use of the Manor as a theme park was
debated. It was noted that a structure plan policy stated that the threat to the
ancient monuments in Avebury caused by visitor pressures was of growing
concern and therefore considerable scope existed for the development of
alternative attractions. Also considerable efforts were being made generally to
encourage more visitors to the area. An inspector noted that the recreational
experience of visiting a theme park was different to visiting an ancient
monument. Some visitors may be attracted to both, some are unlikely to be,
and on the balance of probability, many of the visitors who would be attracted
to the theme park would not visit the ancient monument. It was however
considered that the proposal would result in more people coming to Avebury
than would come otherwise, some of whom would want to visit the ancient
monument. It was not possible to restrict numbers by condition. It was
concluded that the granting of permission could prejudice extensive and far
reaching measures to protect the special character of the area.
The provision of additional tourist facilities was a key reason why former
glasshouses previously used as part of a horticultural enterprise were granted
permission to be used as a craft centre, butterfly farm and otter sanctuary in a
rural buffer, see North Wiltshire 18/8/00 DCS No 032-700-034 . The inspector
accepted that whilst the development had the potential to generate noise and
disturbance, the site was distant from any settlement and conditions could
limit any harm to nearby properties. He felt that it would build upon an existing
rural facility and garden centre and would be appropriate to its location and in
its scale.
A motorist’s service area and visitor information/outdoor activity centre, the
majority of which would be beneath an earth-covered dome, was proposed in
open countryside on the edge of the Lake District National Park. The main
issue was the effect on open countryside, balanced against the interests of
tourism development. An important material consideration was an extant
permission for a motel on the site and any objections to the visual appearance
of the scheme were outweighed by the elimination of the conventional wall
and roof construction of the approved design. The site was in a designated
tourism area and the Cumbria Tourist Board had noted that tourism had been
concentrated on the central part of the Lake District and that it should be
encouraged in other parts in order to provide a broader base for tourism.
However, the point was also made that the centre would not alleviate the
problems of concentration but make matters worse by attracting visitors to a
centre which was within easy reach of places. The inspector concluded that
the scheme would not increase pressure on the lakes to such an extent as to
make the project unacceptable and may play a role in setting out the
attractions of the peripheral areas, see Eden 16/5/91 DCS No 035-420-181 .
A green belt proposal was allowed in St Albans 25/10/00 DCS No 039-958503 partly because it would attract more tourists to a nearby city by assisting
in the marketing of the city as a weekend destination as well as for day trips.
The proposal was for a visitor centre, training and research centre, cafeteria,
ancillary buildings and improved access at a rose garden in green belt. The
SOS considered that the proposals would complement and secure the use of
the land as gardens. The proposal would serve the green belt objectives by
encouraging outdoor recreation and further access to a largely rural
experience within the countryside for nearby urban populations, ensure the
attractive landscape of the gardens was retained and expanded, providing a
more diverse environment for wildlife and retaining land in horticultural use.
The SOS also considered that the cafeteria was necessary to offer a main
meal to visitors, which was considered to be a minimum requirement in
retaining visitors for more than 2 or 3 hours. This visitor retention was also
accomplished by an improved gift shop, interpretation/heritage area and good
quality lavatories. The SOS therefore considered that very special
circumstances existed to justify the proposal.
An inspector felt that a proposal to extend facilities at the Yorkshire Dales
Falconry and Conservation Centre, to include an hotel and retail elements,
would not conflict with landscape and environmental protection policies, but
was concerned about retail impact. The inspector noted that the goods
proposed to be sold were tourist related, including outdoor country wear, but
felt that a condition securing this would be difficult to frame with precision, and
was contrary to advice in the Circular. A planning obligation would be
appropriate, but none had been made or offered, and that without such an
undertaking there would be a threat to nearby local centres from loss of trade,
see Craven 3/4/01 DCS No 034-152-080.
A proposal which involved a 1,472 sqm shop, together with a garden centre,
café and visitor interpretation centre was claimed by a council to potentially
harm the vitality and viability of local shopping centres since the main
component of the scheme was retail, see Stirling 9/4/01 DCS No 039-311-403
The appellants argued that it was intended to provide a high quality visitor
attraction, to promote Scottish produce and encourage access to and
appreciation of the natural landscape. The reporter agreed with the Councils
argument noting that the sale of gifts, crafts, flowers and luxury food would
considerably overlap with those sold within existing shops. Moreover the
reporter held that there was a risk that the nature of the development might
change over time to become more mundane thereby having an even greater
impact on local shopping facilities. Such a change could not be adequately
controlled by condition or legal agreement the reporter noted, given the
extensive range of products which were proposed to be sold. Since the visitor
interpretation centre comprised only 5% of the total floorspace, the economic
success of the scheme was dependent upon the retail and café elements
which were urban rather than rural land uses and would harm the rural
character of the locality. The appeal was dismissed.
DCS Numbers are the discrete numbers allocated to each appeal case by
Development Control Services. They facilitate the ordering of copies of
decision letters by Fax or post by telephoning 01452-835820. Subscribers can
also download appeals by hitting the case reference link.
Question and Answer Section
We act for a client proposing a children's animal farm as a form of rural
diversification. The council is recommending approval subject to an
agreement or condition limiting visitor numbers and the use of best
endeavours to secure bus provision. We wonder whether these requirements
are acceptable and if there are precedents?
Allowed cases relating to this type of use do not often feature at appeal.
However, looking at rural visitor attractions as a whole it is clear that local
authorities are rightly concerned to secure that such developments, if
acceptable in principle, remain limited in their capacity, and do not grow into
enterprises which would create highway/amenity problems, or cause
landscape harm. The problem with visitor number ceiling conditions is
enforceability, and curbs on the amount of parking or opening hours are often
looked at as better alternatives. However, reference has to be made to the
Yorkshire Dales case (see Casebook 25 August 2000: DCS No.036-562-616)
concerning a garden open to the public, where a wide range of restrictive
conditions were applied by an inspector, including a detailed visitor
management scheme. Conditions or agreements relating to bus access may
be justified as part of the concept of green transport planning urged by
PPG13, but their utility has to be tempered by the ability of a particular
applicant to influence the way in which clients make their way to a proposed
enterprise.
I have a client who is considering making an application for a substantial
leisure complex just within an Area of Outstanding Natural Beauty (AONB)
designation, but should I be telling him not to waste his time and money?
The number of call-in or appeal cases involving large scale new build
developments within an AONB is very small indeed and hardly any have been
allowed. This is indicative of the very tight controls which are exercised in
AONBs as set out in PPG7, and the recent extension of National Park criteria
thereto only serves to tighten the screw further. Clearly very special
circumstances are needed to justify development within an AONB. The well
known Center Parc case at Longleat in Wiltshire is one example where ten
years ago economic need, enabling gain and a discreet location in woodland
combined to tip the balance in favour of permission after call-in. Another
situation where permission may possibly be contemplated would be where
landscape quality has already been severely compromised but this would be a
very exceptional circumstance. My advice, without knowing the planning
context and history of your client's land, is that the attainment of planning
permission is extremely unlikely.
The development of open-air leisure facilities in the countryside has been a
response to the growth in car ownership and motorway development over the
last 40 years. To begin with, safari parks become possible and popular, often
combined with the pressing need to diversify the stately home business to
attract maintenance income. This was followed by the emergence of the
theme park and the “heritage” industry. Alton Towers remains the leading
example in the UK of the theme park, although its main attraction is the latest
fairground rides. It is a common feature of such attractions that they embody
both “amusements” and more “serious” exhibits, commonly historical
recreations. The Flambards theme park in Cornwall and Thorpe Park in
Surrey are good examples.
Agricultural practices past and present and the exhibiting of rare breeds are
also favoured themes, as they fit with policy promoting and diversifying the
rural economy. Industrial archaeology and especially steam railways are a
continuing fascination and the number of working museums and reopened
lines continues to grow.
Statistics show that the UK tourism and leisure industry is a buoyant one.
18.4 Rural visitor attractions & museums
This section covers the planning control of countryside and seaside visitor
attractions, ranging from funfairs to theme parks and farms open to the public.
These are the type of destinations, often open air, selected for day trips,
whether by tourists staying in the area or by people living within a reasonable
driving distance. Urban museums and attractions are dealt with under 17.5
and sports centres under 18.1. Outdoor sport and active leisure pursuits are
to be found at 18.2. Equestrian related enterprises are considered under 23.2.
For dwellings associated with leisure/tourist attractions see 9.232.
18.41 Legal background
The majority of the uses covered by this section are unlikely to fall within a
class of the Use Classes Order. Class D1 Non-residential institutions includes
some leisure uses such as art galleries and museums, and D2 Assembly and
leisure is concerned only with indoor venues for entertainment and with indoor
and outdoor sports facilities. Funfairs are specifically excluded from any class
by Article 3(6) of the Order , see 18.414 and are, therefore, a sui generis use.
The question of which activities are ancillary to a tourist attraction is
addressed in the cases detailed at 18.451 and whether “opening to the public”
can be ancillary to another use is debated under 18.45.
Zoos are controlled by a local authority licence and smell problems can be a
statutory nuisance under sec. 92 of the Public Health Act 1936.
18.411 Scope of D2 Use Class
An enforcement notice alleged the unauthorised use of a sports and social
club for the holding of sales, auctions, car boot fairs, weddings, fetes, funfairs
and firework displays in an area designated as metropolitan open land in
Greenwich 5/4/01 DCS No 030-547-361 . The appellant argued under ground
(c) that the lawful use of the site fell within Class D2 of the Use Classes Order
and the uses enforced against did not involve a material change of use. In
accepting that the intensification of a use within a particular use class would
not normally lead to a material change in the use of the land, the inspector
observed that many of the enforced uses such as sales, auctions and car boot
fairs involved the sale of goods and clearly did not fall within Class D2. In
addition fetes and firework displays were similar to a funfair and paragraph 3
of the UCO specifically excluded a funfair from being within any use class.
Under ground (a), permission was refused since retail sales and funfairs were
not ancillary to the lawful use of the site and were therefore inappropriate
uses in the metropolitan open land. The inspector also held that this decision
did not affect the ability to conduct any activities where they were incidental to
the lawful D2 use in accordance with the judgment in Mansi v Elstree Rural
District Council [1964].
18.412 Part 28 Rights
In respect of amusement parks, defined as including funfairs (other than by
way of a temporary use), Part 28 of the GPDO permits some types of
development without the need for express planning permission. The Order
permits the erection, extension, alteration or replacement of booths or stalls,
or the installation of plant or machinery to be used for or in connection with
entertainment of the public within an amusement park, subject to certain
limitations.
Part 28 rights were claimed by the operator of an Animal Adventure Park
located in open countryside in their case against enforcement action requiring
the removal of children’s play equipment, see Broads Authority 14/06/02 DCS
No 037-147-939 . An inspector held that static play equipment did not meet
the GPDO definition of plant or machinery and accordingly was excluded from
being permitted development by class A. (a) of Part 28.
Broads Authority: play equipment not permitted development under Part 28
GPDO allowances are discussed in Ryedale 27/1/92 DCS No 100-026-031
where an unauthorised roller coaster, called the “Bullet”, had been built within
Flamingo Land Pleasure Park. The main structure of the ride, which was
painted red and white, was below 25m height and within GPDO tolerances.
However, an important and integral part of the ride and safety structure rose
in height to some 36m. An inspector considered that no harm would be
caused through height, colour, appearance, dominance or noise provided the
top 11m of the ride was painted a more agreeable colour and was removed
from the park whilst it was closed to the public.
18.413 Temporary buildings and uses
An enforcement notice alleged change of use from a fun fair to a fun fair and
the retail sale of goods in Snowdonia 4/8/94 DCS No 040-714-579 . The
appellant argued that there had been no development within the meaning of
Sec.55 of the Act and that there had been no change of use. An inspector did
not consider that the sale of goods which were predominantly clothes was
incidental to the main use and therefore there had been a material change. It
was also maintained that the use of land for this use, limited to no more than
14 days, was permitted development. The Authority accepted that the use had
not extended beyond 14 days but pointed out that under Schedule 2, Part 4,
Class B.1(a) of the GDO, development is not permitted if “the land in question
is a building or is within the curtilage of a building”. The Council argued that
the site was not within the curtilage of the appellants amusement arcade and
that the stall was erected on open ground. The case of Dyer v Dorset C.C.
1988 was quoted, with the inspector noting that the concept of curtilage was
not restricted to dwelling houses (as recognised by Part 8 P.D. tolerances).
Sinclair-Lockhart Trustees v Central Land Board was used to confirm that
curtilage need not be an area that is marked off or enclosed in any way and
that it is enough that it serves the purpose of a building in some reasonably
useful way. It was concluded that even though the circulation space between
the two amusement arcade buildings was not marked off or enclosed it was
essential to the operation of the funfair. In this case the curtilage of the
amusement buildings extended to the whole of the planning unit, which was
the whole of the funfair. As the stalls were erected within the curtilage of a
building no P.D. rights existed and the appeal failed.
Two LDC's were sought for military tank driving courses and military vehicle
meetings for up to 28 days per year and the galloping of two racehorses twice
daily for 20 minutes in total in Maidstone 17/3/00 DCS No 051-624-175 . It
was argued that the first was permitted under Class B in Part 4 to Schedule 2
of the GPDO. No operational development would be involved and it would not
involve any element of motor sport or racing. A LDC was granted. With regard
to the second, the council argued that it was not de minimis. An inspector
agreed, noting that it had some effect on the character of the land and was
thus not de minimis. It was a regular and systematic use that amounted to
development and this certificate was denied.
A CLEUD was sought for use of land as a showground in Broxtowe 9/8/00
DCS No 055-821-047 . In deciding in the appellants favour, the inspector
accepted that prior to 1989 the use of the site for camping exhibitions
exceeded the 28 day temporary use of land permitted by Class B of Part 4 to
Schedule 2 of the General Permitted Development Order 1995 and
accordingly a material change had occurred. In rejecting the local authority's
contention that intensification of the use after that date led to a further change,
the inspector observed that there had been no change in the character of the
use which was required in accordance with the judgment in Blum v SSE &
Richmond on Thames Council [1987]. However the inspector rejected the
appellants contention that the land could also be lawfully used for fairs,
circuses and shows since these fell outside the exhibition use. A certificate
was granted for the holding of exhibitions limited to a total of 54 days in any
calendar year.
18.414 Ancillary buildings and uses
Judicial review was carried out of a local authority’s decision not to take
enforcement action against helicopter flights from a helicopter museum on the
basis that helicopter experience flights or flights by visitors were ancillary to
the museum use. In dismissing the appeal, the Court held that the Council’s
decision was based on a proper assessment of the evidence and information
available. In reaching their decision, the Council had carried out a study which
concluded that active participation by visitors is a normal feature of a
museum, particularly ones dedicated to transport or aviation. The Court
decision placed importance on the fact that the Council intended to monitor
the situation to ensure that the flying activities, as a matter of fact and degree,
remained ancillary to the museum and did not intensify to the point that it
would amount to a material change of use. The case is R. (on the application
of I’m Your Man Ltd) v North Somerset Council and The International
Helicopter Museum 26/2/04.
Kerrier District Council in Cornwall enforced against two vans which contained
a model mine and refreshment sales at the famous Seal Sanctuary. In
dismissing an appeal against the action, an inspector accepted that while the
model mine was a chattel, a material change of use had taken place and that
it was not ancillary to the permitted mixed use. The model mine was a new
and separate use and its trailer was shabby, bulky and intrusive. The
inspector also thought the refreshment van a chattel, but again a material
change of use had occurred. Sales of food or drink were not ancillary to the
operation of the Seal Sanctuary. These decisions are interesting for the
opinion that the provision of refreshments and the sale of souvenirs etc is not
ancillary to this particular use, although it could hardly be denied to tourist
attractions of a more conventional kind, see Kerrier 8/11/84 DCS No 039-571835 .
18.415 10 year rule-Parking
An LDC was sought for the use of 10.9 ha of land for parking purposes in
Edinburgh 1/5/01 DCS No 035-475-138 . The land was associated with the
Royal Highland Showground. The reporter applied the tests of the physical
condition of the appeal site, the nature of the use, evidence of the owner's
intentions and evidence of any intervening use. He was persuaded that the
physical condition of the site and related infrastructure indicated that the
ground had been developed for parking purposes and it had occurred for
more than 10 years. Although the parking had varied in intensity there was
evidence of long term and continuous use associated with a well patronised
commercial, leisure and agricultural complex. There had been neither
intervening uses nor any evidence that the owners had intended to abandon
the use.
18.416 Dwellings
An inspector allowed the retention of two staff caravans at The Welsh
Hawking Centre located in a rural area near Barry in Vale of Glamorgan
8/8/00 DCS No 036-867-721 . An appeal inquiry also considered a Lawful
Development Certificate (LDC) refusal relating to the residential occupation of
a caravan together with a portacabin. In respect of the LDC appeal the
inspector noted that the units had been in occupation for more than ten years
and looked at in isolation enjoyed immunity from enforcement. However, he
noted that in 1997 two further caravans had been brought to the site and an
intensification causing a material change of use had occurred. In considering
the application to retain all three units, the inspector examined the question of
whether the Hawking Centre qualified as an agricultural use, but concluded
that the breeding and keeping of birds of prey did not comply. However, he
conceded that, in order to run this highly specialised enterprise effectively, it
was necessary for staff to be on the spot, and it would be reasonable to allow
two caravans to remain on the site.
18.42 Market trends
The development of open-air leisure facilities in the countryside has been a
response to the growth in car ownership and motorway development over the
last 40 years. To begin with, safari parks become possible and popular, often
combined with the pressing need to diversify the stately home business to
attract maintenance income. This was followed by the emergence of the
theme park and the “heritage” industry. Alton Towers remains the leading
example in the UK of the theme park, although its main attraction is the latest
fairground rides. It is a common feature of such attractions that they embody
both “amusements” and more “serious” exhibits, commonly historical
recreations. The Flambards theme park in Cornwall and Thorpe Park in
Surrey are good examples.
Agricultural practices past and present and the exhibiting of rare breeds are
also favoured themes, as they fit with policy promoting and diversifying the
rural economy. Industrial archaeology and especially steam railways are a
continuing fascination and the number of working museums and reopened
lines continues to grow.
Statistics show that the UK tourism and leisure industry is a buoyant one.
Thorpe Park in surrey, one of the major theme parks in the UK. Photo Hunting
Aeroflims
18.43 Control practice
NPPF emphasises that planning should support economic growth in rural
areas by taking a positive approach to sustainable new development. Rural
tourism and leisure developments should be supported provided they respect
the character of the countryside and they meet a need that is not being met by
existing facilities in rural service centres.
Good Practice Guide on Planning for Tourism (2006)
Guidance on the approach to be taken to tourism development is currently set
out in the Good Practice Guide on Planning for Tourism (2006), which
replaced PPG21 Tourism (1992).
The guide places great emphasis on the benefits of tourism to the national
and local economy, and the social and environmental well being of the whole
country. The particular value of these benefits to rural areas is noted. The
guide recognises the role of the planning system in facilitating the
development and improvement of tourism in appropriate locations and
encourages a pro-active approach in order to achieve expansion of this
important industry. Examples of local authority best practice in planning for
tourism are given in the guide.
The guide focuses on broad principles that are relevant to most types of
tourist development and does not deal in detail with individual types of
development. Key planning considerations for all types of visitor and tourist
developments are given as location, design and fit with surroundings:
Location: this should be accessible, ideally by a variety of means of transport,
and not cause harm to a sensitive environment. New developments should be
as sustainable as possible in transport terms but the guidance also
recognises that there will be instances, some due to functional need, where
the choice of location cannot meet this objective.
Design: this should be attractive, functional and sustainable in terms of energy
efficient construction and operation, or involve the re-use of existing buildings;
Fit with surroundings: development should conserve and enhance local
environmental qualities, whether that quality lies in the historic built
environment, natural landscape or nature conservation.
The good practice guide provides specific advice on tourism in rural areas. It
states that the provision of essential facilities for visitors is vital for the
development of tourism in rural areas and that RSS and LDF policies should
engender a positive approach to rural tourism proposals, within the context of
certain principles:
•
“Wherever possible, tourist and visitor facilities should be housed in
existing or replacement buildings, particularly where they are located outside
existing settlements.
•
In statutorily designated areas they should seek to conserve and
enhance the qualities and features that justified the designation.
•
Large-scale tourist proposals must be assessed against the whole
range of sustainable objectives. This includes not only their transport
implications but also other sustainability considerations such as how they
assist rural regeneration and the well being of communities.”
18.431 Sustainability
The principles of sustainability are now a central thread running through
planning policy. An example of the evaluation of the sustainability of a major
new museum in the countryside is to be found in the following case. The SOS,
following call in, refused planning permission for the erection of a 4,475 sqm
building to house a collection of steam and mechanical organs, ruling that the
chosen 3.5Ha greenfield site in open countryside was inherently
unsustainable. The applicant stated that the Council fully supported the
scheme which would house a collection of national importance. The SOS,
however, decided that scheme was inappropriate to a countryside location
because it would generate a significant number of journeys by car and result
in the loss of high quality agricultural land, noting that the applicants had failed
to prove why the site was the only viable and suitable location to house the
collection, see Mid Bedfordshire 16/06/06 DCS No 100-044-058 .
18.432 National need
A case that demonstrates the national need argument as applied to a tourism
project is Mid Sussex 2/4/85 DCS No 100-005-427 . The Bluebell Railway
Company applied for an extension to its existing steam line, taking it from
Horsted Keynes to East Grinstead. The proposal was refused The appeal
issues centred on very compelling arguments for the proposal from the
tourism point of view, versus the farming interests affected. A considerable
section of the track bed had been sold to adjoining agricultural occupiers
when the line was closed in the 1960’s.The Secretary of State enthusiastically
stated the view that the proposal was an imaginative and ambitious project
which would bring benefits to the community as a whole, although his
inspector had been more cautious in his assessment of the advantages of the
scheme. He took on board the benefits of a connection with BR at East
Grinstead and set aside objections that had been made on grounds of
management, wildlife and agriculture. These were outweighed by benefits to
the national interests if the project were to proceed, despite the need for
compulsory purchase powers. The appeal was allowed.
18.433 Local need: whether additional visitor facilities beneficial?
A dilemma which may have to be tackled is whether a proposal is beneficial
as it takes pressure off a nearby site under threat from tourists or if it is
harmful as it attracts more tourists to an area generally. In the Avebury Manor
enforcement appeal detailed at 18.451 use of the Manor as a theme park was
debated. It was noted that a structure plan policy stated that the threat to the
ancient monuments in Avebury caused by visitor pressures was of growing
concern and therefore considerable scope existed for the development of
alternative attractions. Also considerable efforts were being made generally to
encourage more visitors to the area. An inspector noted that the recreational
experience of visiting a theme park was different to visiting an ancient
monument. Some visitors may be attracted to both, some are unlikely to be,
and on the balance of probability, many of the visitors who would be attracted
to the theme park would not visit the ancient monument. It was however
considered that the proposal would result in more people coming to Avebury
than would come otherwise, some of whom would want to visit the ancient
monument. It was not possible to restrict numbers by condition. It was
concluded that the granting of permission could prejudice extensive and far
reaching measures to protect the special character of the area.
The provision of additional tourist facilities was a key reason why former
glasshouses previously used as part of a horticultural enterprise were granted
permission to be used as a craft centre, butterfly farm and otter sanctuary in a
rural buffer, see North Wiltshire 18/8/00 DCS No 032-700-034 . The inspector
accepted that whilst the development had the potential to generate noise and
disturbance, the site was distant from any settlement and conditions could
limit any harm to nearby properties. He felt that it would build upon an existing
rural facility and garden centre and would be appropriate to its location and in
its scale.
A motorist’s service area and visitor information/outdoor activity centre, the
majority of which would be beneath an earth-covered dome, was proposed in
open countryside on the edge of the Lake District National Park. The main
issue was the effect on open countryside, balanced against the interests of
tourism development. An important material consideration was an extant
permission for a motel on the site and any objections to the visual appearance
of the scheme were outweighed by the elimination of the conventional wall
and roof construction of the approved design. The site was in a designated
tourism area and the Cumbria Tourist Board had noted that tourism had been
concentrated on the central part of the Lake District and that it should be
encouraged in other parts in order to provide a broader base for tourism.
However, the point was also made that the centre would not alleviate the
problems of concentration but make matters worse by attracting visitors to a
centre which was within easy reach of places. The inspector concluded that
the scheme would not increase pressure on the lakes to such an extent as to
make the project unacceptable and may play a role in setting out the
attractions of the peripheral areas, see Eden 16/5/91 DCS No 035-420-181 .
A green belt proposal was allowed in St Albans 25/10/00 DCS No 039-958503 partly because it would attract more tourists to a nearby city by assisting
in the marketing of the city as a weekend destination as well as for day trips.
The proposal was for a visitor centre, training and research centre, cafeteria,
ancillary buildings and improved access at a rose garden in green belt. The
SOS considered that the proposals would complement and secure the use of
the land as gardens. The proposal would serve the green belt objectives by
encouraging outdoor recreation and further access to a largely rural
experience within the countryside for nearby urban populations, ensure the
attractive landscape of the gardens was retained and expanded, providing a
more diverse environment for wildlife and retaining land in horticultural use.
The SOS also considered that the cafeteria was necessary to offer a main
meal to visitors, which was considered to be a minimum requirement in
retaining visitors for more than 2 or 3 hours. This visitor retention was also
accomplished by an improved gift shop, interpretation/heritage area and good
quality lavatories. The SOS therefore considered that very special
circumstances existed to justify the proposal.
18.434 Retail element
An art and antiques exhibition and auction room use from a shop at an
established visitor attraction was permitted because it would constitute a
tourist use which would attract visitors. The appeal premises were situated at
Prinknash Abbey Park which had been a tourist attraction since the 1960’s but
visitor numbers were in decline since the closure of the Abbey pottery. An
inspector felt the proposal would complement the other remaining uses and
bring visitors who could visit the other attractions either on the same day or
other occasions, see Stroud 12/01/09 DCS No 100-059-678 .
Stroud: art exhibition constituted a tourist use
An inspector felt that a proposal to extend facilities at the Yorkshire Dales
Falconry and Conservation Centre, to include an hotel and retail elements,
would not conflict with landscape and environmental protection policies, but
was concerned about retail impact. The inspector noted that the goods
proposed to be sold were tourist related, including outdoor country wear, but
felt that a condition securing this would be difficult to frame with precision, and
was contrary to advice in the Circular. A planning obligation would be
appropriate, but none had been made or offered, and that without such an
undertaking there would be a threat to nearby local centres from loss of trade,
see Craven 3/4/01 DCS No 034-152-080 .
A proposal which involved a 1,472 sqm shop, together with a garden centre,
café and visitor interpretation centre was claimed by a council to potentially
harm the vitality and viability of local shopping centres since the main
component of the scheme was retail, see Stirling 9/4/01 DCS No 039-311-403
The appellants argued that it was intended to provide a high quality visitor
attraction, to promote Scottish produce and encourage access to and
appreciation of the natural landscape. The reporter agreed with the Councils
argument noting that the sale of gifts, crafts, flowers and luxury food would
considerably overlap with those sold within existing shops. Moreover the
reporter held that there was a risk that the nature of the development might
change over time to become more mundane thereby having an even greater
impact on local shopping facilities. Such a change could not be adequately
controlled by condition or legal agreement the reporter noted, given the
extensive range of products which were proposed to be sold. Since the visitor
interpretation centre comprised only 5% of the total floorspace, the economic
success of the scheme was dependent upon the retail and café elements
which were urban rather than rural land uses and would harm the rural
character of the locality. The appeal was dismissed.
18.435 Highways and Parking
PPG13 Transport states that tourist facilities should be concentrated in
locations which are well served by public transport. If they are not, the LPA
should consider the extent to which the proposal needs to be in the proposed
location. The Good Practice Guide on Planning for Tourism (2006) reiterates
that new tourism developments should be as sustainable as possible in
transport terms but recognises that in some instances a sustainable location
is not an option. Where this is the case and the traffic generated by the
proposal is likely to be fairly limited, then additional traffic movements are
unlikely to be a reason for refusal. Further than that, in all cases the, often
considerable, benefits of a tourism proposal must be weighed against
objections arising simply from choice of location.
In cases where there are no other planning objections, highway authorities
may find their objections under very critical scrutiny. Such a case, see Lewes
14/12/89 DCS No 055-360-745 related to a commercial/recreational farm and
country park where the decision hung on the narrowness of the country lane
access to the site. A particular concern of the local authority was the
inaccessibility of the site to coach traffic. An inspector discussed specific
conditions requested by the local authority to provide a passing place along
the lane and limiting the number of coach movements from the site. The first
was believed to have no proven need and the latter too difficult to enforce to
be acceptable. A condition with respect to signage and publicity material with
route information was, however, included.
It was proposed to provide additional car parking at the South Lakes Wild
Animal Park in Barrow-in-Furness 16/2/00 DCS No 041-225-873 , a
successful tourist attraction where there was heavy demand for spaces at
peak times. Whilst an additional 44 spaces would not solve the parking
problems, it would provide some improvement. Use of the car park was
limited to no more than 70 days per year and to 1200-1800 hrs on each day of
use.
The tendency of tourist uses to grow in an incremental way presents a
particular problem for decision makers. A case demonstrating the difficulty in
accurately forecasting the numbers of visitors to a leisure attraction, and
hence what impact the use would have on amenity and traffic considerations
is Salisbury 11/10/96 DCS No 035-658-771 . Use of an agricultural store as a
“Farming Through the Ages” exhibition was proposed at a working farm
already open to the public. The contentious issue was the adequacy of the
local highway network to accommodate the increase in traffic. When planning
permission was first sought for the visitor attraction it was estimated that there
would be 6,200 visitors during the season (160 days per annum). However
that figure was soon exceeded and it now appeared that 25,000 visited the
attraction. The level of vehicular traffic generated was now substantial and the
proposed expansion would further increase the attractiveness of the site.
These additional movements would have to be accommodated on a narrow C
class road but a difficult junction to a B class road. The appeal was dismissed
as the local highway network was not adequate to serve the proposed
development.
Permission was refused for the relocation of a bird park within the Cotswolds
village of Bourton-on-the Water. The issues were whether the development
would detract from an AONB and whether there would be local amenity and
traffic problems created by the concentration of tourist facilities at this point.
The inspector thought that with use of site trees to break up the outline of
suitably designed buildings there would be no visual problems in this village
edge setting. As to noise the inspector was satisfied that a buffer area would
mitigate problems, and noted that the enterprise would not be open in the
evening. Traffic remained his greatest concern as considerable congestion
occurred in this popular location. There was a difficult balance to be struck
between the promotion of the village as a tourist centre and the provision of
car parking and other facilities which might detract from its character. He gave
weight to the existing association of the attraction with Bourton and thought
the proposal would give no significant increase in the number of visitors, see
Cotswold 22/9/87 DCS No 040-631-087 .
18.436 Listed buildings
Guidance in paragraph 3.8 of PPG15 explains that generally the best way of
maintaining historic buildings is to keep them in active use. This may involve
some degree of adaptation. It has also been accepted that income from tourist
attractions which provides for the upkeep and maintenance of the building, is
a material consideration.
Permission was sought for the relocation of existing fairground rides on
Brighton pier, which was Grade II*, in Brighton & Hove 14/7/99 DCS No 049668-235 . A council objected to three specific rides: the Roller Coaster, the
Ranger and the Enterprise. The rides would be concentrated down the centreline of the pier with the tallest set close to the centre. The Roller Coaster was
not out of character and all were agreeable in function and scale. Moreover
the income from rides assisted in the up-keep of the pier. Whilst English
Heritage objected, the SoS accepted that listed buildings must be put to put to
good economic use in order to preserve and enhance them. Substantial
improvements have been undertaken and there would be little harm to the
pier or wider conservation area.
A Loch Ness visitor centre was proposed adjacent to Urquhart castle, a
category A listed building and scheduled ancient monument in Highland
1/2/99 DCS No 056-602-362 . A reporter concluded the scheme did not
require an Environmental Assessment and that the proposal, including a 75
seat tea room, was not of excessive scale when compared to other facilities at
Culloden battlefield and Stirling castle. The design would be of high standard
and whilst there would be an impact on the castle, the existing assortment of
shops, toilet and mobile snack bar would be replaced by a single building.
Landscaping of the car park would reduce its landscape impact.
Archaeological remains would be preserved in situ and a full investigation was
required. The need to bring 3,000 lorry loads of fill material weighed against
sustainability objectives. No suitable alternatives existed. There were
weaknesses in the scheme including an inability to cope with future car
parking demand and the failure to protect all archaeological remains in situ.
These were not fatal and the SoS for Scotland agreed.
In the Avebury manor enforcement appeal, see 18.451, it was considered that
use of the Manor as a theme park adversely affects the setting of the Manor
and all adjacent listed buildings. The argument that the theme park was
necessary to generate the level of funds required for the restoration and future
preservation of the Manor was rejected. Although the high costs were
acknowledged it was not accepted that the creation of a theme park was the
only economically viable option to prevent the loss of the Manor.
18.437 World Heritage Site
A new visitor centre at Stonehenge was judged to improve the setting of this
World Heritage Site. The SOS agreed with an inspector that the proposed
visitor centre, parking areas and access arrangements would lie outside the
World Heritage Site and were designed in a way that would avoid intrusion
upon its setting. The SoS considered that the proposed transit arrangements
could well be regarded by many as an intrusion into a historic landscape, but
that against the impact of a land train could be set the considerable benefits of
removing the most visually damaging elements of the existing visitor centre
and the decommissioning works to the adjacent Trunk Road, see Salisbury
28/03/07 DCS No 100-048-032 .
Salisbury: Stonehenge visitor centre improved setting
18.438 Visual impact on the countryside
With regards visual amenity much depends on the capacity of the landscape
around the site to absorb activity, both visually and aurally. A quiet open area
of countryside, particularly one designated as, or being near, an Area of
Outstanding Natural Beauty, is not likely to be considered the best location for
a full scale leisure park, no matter how sensitive the design.
A proposal to construct an Iron Age farm in the Cheshire countryside was
rejected despite potential educational and tourism benefits. The inspector held
that overall the buildings constructed of straw and thatch with mud walls
would be of substantial size which, when taken together with cultivated areas,
would represent an alien feature, eroding the attractive landscape, see
Chester 28/09/2000 DCS No 040-444-309 .
The Buildings Renaissance Trust sought permission for a millennium
campanile incorporating a clock in Lake District 27/04/1999 DCS No 042-040106 . It was considered that whilst a clock might be apt, this did not justify an
exception to well established planning policies. The building was not typical of
the area and would appear as an anomaly in the open countryside.
An interesting case demonstrating that the visual impact from tourist attraction
in the countryside is not confined to that caused by buildings is South Hams
14/12/1994 DCS No 041-579-972 . Application was made for use of a 27ha.
holding as a rare breeds centre open to the public. A car park for 40 cars
would be provided. A previous appeal relating to a farm visitor centre had
been dismissed. It was argued that the proposal as now envisaged, being
restricted to rare breeds, would be limited in scope so as not to harm local
amenity, and the rural economy would be diversified. An inspector noted that
the appellant had accepted that there would be days when the car park was
full. In addition aggressive marketing could further extend the days when the
car park was full. It would be difficult to resist further such legitimate
expansion of the business, and thus it would be wrong to initially permit a
development if a site could not satisfactorily accommodate a reasonable
degree of logical growth. Any gain to the rural economy would not be offset by
harm which would occur to the local landscape with as many as 40 cars
coming and going, an occasional coach and the presence of the public
themselves. Signage, advertising and rubbish bins would add to the impact,
which would be starkly alien and damaging. There was no evidence of any
need for the centre, and the holding itself was still agriculturally viable. The
appeal was dismissed.
18.4381 Areas of Outstanding Natural Beauty
Seal Sanctuary
A District Council refused to permit proposals for extra seal pools, a cafe and
miscellaneous buildings at a popular tourist attraction which had begun simply
as a sanctuary for the rescue and rehabilitation of injured and orphaned seals.
The site, in an AONB and with access through a village residential area,
operates by virtue of permission given in 1973. The Sanctuary developed into
a major tourist attraction with an annual attendance of over 100,000. The new
facilities needed for the unique care aspects of the use were allowed but the
facilities to cater for visitors were held to be too intrusive and out of scale in
this part of the AONB. The site was clearly the wrong one for the use as it had
developed, and despite a restrictive planning regime, it had proven difficult to
directly control numbers of visitors. The inspector was faced with the dilemma
of effectively freezing the Sanctuary at its existing level, which would have
been an unpopular move having regard to the work carried on and the high
degree of public support for it, or allowing intensive development in the
Cornish landscape. In the end he opted for a compromise. The original
decision to permit the use on this site, and a later car park extension, might be
criticised for its permissiveness and initial lack of foresight that the use could
grow so greatly in popularity, and the case embodies a lesson for other local
authorities faced with similar activities with a large growth potential, see
Kerrier 08/11/1984 DCS No 039-571-835 .
Falconry Centre
A scheme involving the construction of a sunken arena and a bird welfare
hospital at a Falconry Centre in the Isle of Wight AONB was rejected because
of the adverse impact on the landscape, see Isle of Wight 25/03/2008 DCS
No 100-054-304 .
18.4382 National Parks
It was proposed to open to the general public a copper mine within the
Snowdonia National Park in North Wales. The scheme involved the
restoration of a water wheel, the conversion of a building to a
museum/reception area and a car park. The development had been refused
to protect the peace and tranquility of the valley but an Inspector judged that
the benefits of the proposal would outweigh the landscape objections, see
Gwynedd 27/11/1985 DCS No 047-000-805 . In this case most of the
“development" was underground and no new building was required. It was the
car park that would be the main manifestation of the use, and the design and
management of this area was given close attention.
18.4383 Green Belt
If a proposal makes use of a redundant building, PPG2 Green Belts is of
specific assistance. Paragraph 3.7 of PPG2 states that, with suitable
safeguards, the reuse of buildings should not prejudice the openness of
Green Belt, since the buildings are already there. Thus with suitable
safeguards, the reuse of barns for tourist attractions may be appropriate,
provided that its conversion satisfies the guidance. Paragraph 1.6 states that
the use of land in green belts has a positive role to play in fulfilling certain
objectives. Whilst one of these is to provide opportunities for outdoor sport
and recreation, others are to retain attractive landscapes, and to retain land in
agricultural use. Tourism proposals can fail as they go against these latter two
objectives.
New ride at Safari Park
An inspector rejected an appeal to retain a wild river rafting ride constructed
without permission at a Safari Park in the West Midlands, see Wyre Forest
03/06/2008 DCS No 100-055-965 . The argument that the ride was essential
for the operation of a recreation facility was not accepted, the Inspector noting
that there was no evidence that removal of the ride would undermine the
function of the Safari Park and concluding the development to be
inappropriate in the green belt. The appellant had not provided information on
the importance of the ride in terms of visitor use and income and accordingly
the Inspector did not consider that very special circumstances had been
proven.
Car park at established national museum
A policy statement by Solihull Council in connection with a site in the green
belt was debated in a case where the council had issued enforcement notices
directed at unauthorised works at the National Motor Cycle Museum. The
unauthorised development included additional car parking and works such as
a lift and service access to enable an existing conference building to be put to
full economic use. In the resulting appeal, Solihull 22/10/1991 DCS No 054988-412 , an inspector refused permission for a number of the works. In the
subsequent court case, National Motor Cycle Museum Ltd v SoS & Solihull
M.B.C. 28/4/92, the court held that the inspector was in error not to consider
the particular policy position of the Museum vis-à-vis the West Midlands
Green Belt. The planning authority had issued a statement that there was no
indication that the continuation of the Green Belt designation of the site would
prejudice reasoned proposals for expansion of the museum. In the remit
appeal an inspector noted the incremental way in which the museum had
been extended in the past, and felt that what was now on site was an
important national tourist attraction with deficient car parking facilities. He
concluded that there would be a planning advantage in improving the car
parking situation and allowed the present temporary arrangements to continue
for a limited period whilst a permanent solution was negotiated, see Solihull
15/03/1996 DCS No 032-955-585 .
Open air museum
A collection of aircraft had been stationed on a green belt site in a gap
between Gatwick airport and a nearby village. In P.G. Vallance v SOS & Mole
Valley D.C. 13/10/92 the applicant was applying for leave to appeal against a
decision of an enforcement notice. It was held that the inspector had accepted
that it was a valuable collection, of public as well as private interest, but that
this was an unacceptable place for it. He had also recognised that the serious
harm the development would cause to the green belt would not be offset by
the value of the collection. The question of whether the inspector had
considered that the collection of planes was akin to an open-air museum and
hence an institutional use of the type which may be permitted in the green belt
was discussed. Also discussed was the fact that museums were included in
the list of non-residential institutions in the Use Classes Order. It was
concluded that although the wording of some of the decision letter was open
to criticism, there had been no misdirection such as would amount to a point
of law.
New Country Park
A scheme involved the construction of a country park on 42 ha of green belt
land together with eight country houses, to cross subsidise the park, see
South Cambridgeshire 09/08/2001 DCS No 032-465-467 . The park would
provide public open space, with new footpaths, cycle ways and bridleways. A
disused barn would also be converted to a visitor centre. The appellants
argued that there was a need for a country park to serve Cambridge, however
no evidence of the need for the park was put forward with the inspector noting
several other facilities nearby. There was limited public transport to the site so
visitors would need to use their cars. It would also be visually damaging to the
open, fenland landscape due to the introduction of alien uses such as
sports/equine facilities, community art or sculptures, play areas, orchards and
PYO fruit facilities. Public understanding and perception of the fen would also
be damaged and good quality agricultural land would be lost. The reuse of the
barn was considered to be acceptable in terms of para 3.7 of PPG2.
Visitor Centre and Research Cetre at Rose Garden
A green belt proposal was allowed in St Albans 25/10/2000 DCS No 039-958503 partly because it would attract more tourists to a nearby city by assisting
in the marketing of the city as a weekend destination as well as for day trips.
The proposal would serve green belt objectives by encouraging outdoor
recreation and further access to a largely rural experience for nearby urban
populations. The SoS therefore considered that very special circumstances
existed to justify the proposal.
18.439 Ecological impact
Ecological objections are likely to be raised where tourist attractions are to be
located in the open countryside. It may be considered that the economic
benefits of a scheme are outweighed by the demonstrable harm to interests of
acknowledged importance, which have included, for example, the risk to the
protected and declining otter population. Similarly, in Yorkshire Dales
31/03/2000 DCS No 059-494-334 a council sought permission under the
1925 Law of Property Act to erect 5,810 m. of fencing on a common in order
to assist in the recovery of the North Pennines Black Grouse population which
was an endangered species. The SoS concluded that the extent of the
fencing would not harm access to the national park nor adversely affect the
health, comfort and convenience of local inhabitants. Permission was granted
for enclosure of the common.
The proposed Cornish Heritage Centre was dismissed partly due to the
impact of the development on the flooding characteristics of the River Gannel.
Here an inspector believed that a detailed appraisal of the ecological impact
should be an essential element in such a proposal, see Carrick 12/02/1990
DCS No 050-606-808 .
It was proposed to develop a country park with wildlife facilities and visitor car
parking in a disused quarry in Sandwell 18/11/1998 DCS No 042-361-299 . In
order to achieve this approximately 500,00 cubic metres of waste would need
to be imported and landscaped. An inspector noted that the site already
supported a range of habitats which would have to be displaced, some
permanently. Thus there appeared to be no need to carry out major
restoration works in order to achieve the development plan objectives for the
site. The proposed tipping of inert waste would be likely to harm residential
amenity due to dust. Nor was it possible to guarantee a high standard of
management. There was no guarantee that after tipping a country park would
be provided. The enabling development of the tipping and the profits realised
were inconclusive as to viability. Moreover a unilateral undertaking was found
to be of limited value since the appellant could not prove adequate evidence
of title.
18.43/10 Residential amenity
An extension to a railway line at a railway museum was accepted with an
inspector rejecting local authority concerns that increased noise and smoke
from engines was invasive and affected the amenity of local residents, see
Maldon 09/08/2000 DCS No 042-651-942 . It was accepted on the basis that
the railway line and the movement of locomotives along it would have no
perceptible impact on the open character of the countryside landscape. The
inspector noted that whilst the new line would run close to rear gardens, the
passage of trains would be intermittent and smoke would dissipate over
distance. This fact coupled with conditions restricting its use for not more than
20 days per year between 1100 hours and 1730 hours would mean that the
proposal would not be harmful.
18.43/11 Alternative sites
There may be several options as to the choice of site and the question of
need for the location chosen and of alternatives may be proper planning
considerations, as also the level of Tourist Board support or lack of it. Policy
may well provide for such situations and require that no tourist attractions
other than those with an affinity to the historic character or landscape of such
areas be permitted.
Another locational difficulty can occur when a tourism use is to be sited in an
area with many other similar attractions nearby - such as in the popular
coastal holiday areas. Here policy may direct that uses be located inland or to
some other fringe location. On the other hand, new tourism uses that depend
upon the pre-existence of a particular historic house, farm, or perhaps a mine,
are locationally tied and have to be considered largely on merit, as do the
extension of existing uses. In such cases the planning issues may well
devolve down to considerations f the local impact of the proposal and the
resolution of amenity or access problems. In practice the two latter issues can
be a severe impediment to proposals which are near housing, which have
poor access or would create a hazard for main road traffic - the conventional
stumbling blocks for so many uses in rural areas.
Tourism projects raise particular problems of the control of growth by using
conditions, a matter considered further below.
18.43/12 Archaeological harm
Permission was sought for a multi-purpose complex including luxury hotel,
conference centre, hostel/budget accommodation, study centre and ancillary
staff accommodation adjacent to a Prehistoric site including standing and
fallen stones, West Kennett Avenue and a Neolithic/Bronze Age Palisaded
Enclosure. The SOS dissociated himself from his inspector’s conclusion that
the proposal would not harm the setting of the archaeological landscape and
that it would be suitable if not desirable on the site in order not to prejudice the
LPA’s position in considering any further application affecting the site. The
proposal was in a dip in the landform and therefore would not effect the wider
landscape and would secure the survival of listed buildings on the site. It
would however overwhelm these listed buildings and the surrounding
conservation area. The SOS was of the opinion that the site was not only of
national but international archaeological importance and that significant
undiscovered remains may be present. The SOS acknowledged the efforts of
the applicant to redesign the proposals to bridge 3/11er the scheduled
remains to avoid damage. He concluded that although there would be no
physical harm to the remains, they were of such importance that their integrity
should not be compromised by burial beneath further development, see
Kennet 19/12/1990 DCS No 033-016-870 .
18.44 Conditions
The capacity for growth of leisure developments requires very close control by
condition if a local authority is to prevent problems associated with the use
intensifying. It is not, of course, possible to enforce the number of visitors to
an attraction by reference to a condition and achievement of this objective has
to rely on other types of condition.
18.441 Personal and limited period and site specific
Permissions can be made personal and for a limited period. Where the
possibility of the extension of the use onto other land adjoining in the same
ownership is recognised a condition can be applied which reads “The (use
permitted) shall be restricted to those areas shown on the plan and no
additional part of the adjoining land shall be used for those purposes without
the approval of the local planning authority.”
18.442 Hours of opening
If a complex includes a use which it is thought should not be used
independently or in the evening, such as a restaurant, then a condition can be
applied by a local authority to prevent this possibility. Hours of opening and
seasonal restrictions may also be applied if there is a justifiable amenity or
traffic reason for so doing, although this may be in conflict with national policy
to encourage tourism as an all year round industry.
Variation of two conditions, limiting use of a farm visitor centre to not after
1800hrs and preventing any fund raising and corporate events to safeguard
the amenity of local residents, was sought, see Swindon 05/02/1999 DCS No
052-966-665 . An inspector concluded that the condition imposed on the
visitor centre essentially nullified the benefit of the planning permission and
was unreasonable. The hours were varied to up to 23.30 hours on Fridays
and Saturdays with shorter hours of opening during the week.
18.443 Type of use
It may be considered that the precise type of use needs to be specified. In
respect of large developments requiring extensive new building and parking
works, a local authority must take particular care that the precise disposition
of the various component activities around the site is controlled. It is all too
easy for, say, an area shown to be developed as an ornamental fish pond to
change to a use for bumper boats without further planning permission being
required, with catastrophic effects on any neighbours. Conditions need to be
framed that require: a) the submission and approval of plans showing the
precise uses which all parts of the site are to be put, and b) the written
consent of the local authority to changes to those plans.
Seven variation of condition applications were made in connection with a
permission which included use of a building for a museum, craft workshops
and display and exhibition for education purposes. One of the variations
sought permission to display exhibitions other than reclaimed building
materials and architectural artefacts. It was confirmed that a general museum
use was not being sought but one which would be restricted to local history,
conservation of the built and historic environment and energy efficiency. An
inspector viewed these subjects so broad and their limits so difficult to define
that any condition seeking to confine them would be imprecise and difficult to
enforce. The encouragement of new tourist activity onto an already congested
site in a rural area which was remote from public transport was not
acceptable, see Tewkesbury 04/01/1999 DCS No 054-121-595 .
18.444 Removal of PD rights
It should not be necessary for permitted development rights to be removed
unless there is a particular need to control fences, or perhaps temporary
caravan sites. A Class IV temporary uses tolerance may not be used within
the curtilage of a building, and this includes a leisure complex.
18.445 Control of harm to amenity
Judicial review was sought in respect of planning permission for seafront
leisure development, to provide a 34m high observation wheel, fun park,
restaurant and arcade R. (on the application of Ling (Bridlington) Ltd v East
Riding of Yorkshire Council 01/06/06. The claimants, who operated arcades
and leisure uses in the adjoining area, contended, amongst other matters, that
conditions attached to the permission requiring submission of details meant
that the issues of harm to amenity from noise, lighting and overlooking had
not been properly assessed when deciding whether or not the development
was acceptable in principle. The Courts held that the conditions in question
were all properly imposed; concluding that sufficient information had been
submitted with the application to allow the Council to make a judgement that
detailed control of harm could be dealt with by way of conditions.
18.45 Enforcement
It is unusual for enforcement action to be necessary with regard to outdoor
leisure and tourism developments, but situations can occur particularly with
small-scale enterprises. It may be considered that the provision of
refreshments and sale of souvenirs is not ancillary to such small-scale tourist
attractions, although they could hardly be denied to tourist attractions of a
more substantial kind.
18.451 Is an attraction de minimis or a material change of use?
One legal issue concerns the extent to which a householder, a farmer or
perhaps an industrialist, may open his premises to the public without risking
enforcement. An occasional opening of a house or garden would probably be
de minimis, but beyond that questions could begin to be asked. For instance if
a householder opened a garden every weekend during the summer and this
attracted a large number of visitors and cars, then his or her neighbours and
the local authority might feel that the character of the house and land had
altered and a material change to a mixed use had occurred. Similarly if a
farmer conducted “farm open days” on a regular basis the same conditions
could arise. An industrialist could mount a public display of his products at the
plant perhaps together with a factory shop, which might be so popular that a
material change of use would occur. Conducted tours of premises may
however fall within the umbrella of public relations and thus be an ancillary
activity.
An enforcement notice relating to a development described as a "folly garden"
was quashed in relation to a site within the walled garden of a house in the
Yorkshire Dales National Park that had operated as a visitor attraction for the
past three years, see Yorkshire Dales 10/08/2000 DCS No 036-562-616 . An
inspector concluded that the National Park Authority's objection, that there
was policy conflict because the garden could be anywhere and was not
necessary in this location, had missed the point. The development was not
the garden per se, but the material change of use which had occurred when it
opened to the public, and if this change of use was to take place it could only
do so in this location. The inspector also rejected the council's assertion that
the sight of people walking in the garden would be harmful to the landscape,
observing that if such a proposition were to be accepted it would be almost
impossible to promote public enjoyment of the National Park without conflict
with the first statutory purpose thereof. The inspector concluded that
permission could be given subject to strict conditions designed to mitigate
visual and traffic impact, and to restrict the number of visitors by a
management scheme.
One of a series of enforcement notices served on Avebury Manor alleged that
there had been material change of use of the land to a mixed use as a
dwellinghouse and theme park and required the cessation of the use of the
land as a theme park, see Kennet 26/07/1991 DCS No 055-864-712 . In
response it was submitted that the term “theme park” was not sufficiently
precise to inform the recipient precisely what breach of planning control was
being alleged or what must be done to remedy the breach and that it was
usually applied to major and substantial developments such as those at Alton
Towers or Thorpe Park. The SOS viewed that in situations such as this where
a particular term was not defined in legislation that term should be given its
ordinary meaning. The ordinary meaning in this case was a leisure or
recreation facility on a particular theme which is open to the public. The
Councils enforcement notice was therefore not a nullity as it referred to a
leisure/recreation facility based on a historic theme. In addition, publicity
material produced in respect of the Manor invited visitors to “Enter an
Elizabethan Experience” and described the site as a “historical house and
theme park”. As the change had altered the domestic character of the
dwelling it amounted to material change requiring planning permission. In
respect of ground (e) it was considered that whist there were certainly paid
public visiting before 1964 the scale was not such as to result in a material
change.
18.452 Operational development or material change of use?
An enforcement notice required the cessation of a fun fair at a holiday village
in East Riding of Yorkshire 13/01/1999 DCS No 033-709-214 . An inspector
concluded that the notice should relate to a material change in the use of land
rather than operational development since the equipment was not physically
attached to the ground and was seasonal. The use was not immune from
action even though there had been an early permission for a fun fair. Under
ground (a) the council did not produce any evidence of noise harm to adjacent
chalets. There had been complaints but a condition limiting the hours of
operation would be sufficient to control any nuisance.
18.453 Dwellings
An enforcement notice required the removal of a residential mobile home
within a naturist club in East Dorset 14/04/1999 DCS No 041-575-731 . The
mobile home which was occupied by a caretaker. It was found to be harmful
to an AGLV. There appeared to be no need for a permanent residence on site
even though the facilities were required to be maintained.
An enforcement notice required the demolition of an unauthorised bungalow
at a farm which also operated a tourist and education enterprise in Wrexham
01/09/1999 DCS No 038-094-953 . An inspector concluded that there was a
need for two agricultural workers and there was support from the farm's dual
agricultural/tourism role. It was concluded that it was appropriate to take a
broad view of the operation of the farm.
18.46 Appeal record
The relatively few number of appeal cases in this area makes any statistic
analysis of little worth.
DCS Numbers are the discrete numbers allocated to each appeal case by
Development Control Services. They facilitate the ordering of copies of
decision letters by Fax or post by telephoning 01452-835820. Subscribers can
also download appeals by hitting the case reference link.
18.4/10 Q & A
We act for a client proposing a children's animal farm as a form of rural
diversification. The council is recommending approval subject to an
agreement or condition limiting visitor numbers and the use of best
endeavours to secure bus provision. We wonder whether these requirements
are acceptable and if there are precedents?
Allowed cases relating to this type of use do not often feature at appeal.
However, looking at rural visitor attractions as a whole it is clear that local
authorities are rightly concerned to secure that such developments, if
acceptable in principle, remain limited in their capacity, and do not grow into
enterprises which would create highway/amenity problems, or cause
landscape harm. The problem with visitor number ceiling conditions is
enforceability, and curbs on the amount of parking or opening hours are often
looked at as better alternatives. However, reference has to be made to the
Yorkshire Dales case (see Casebook 25 August 2000: DCS No.036-562-616 )
concerning a garden open to the public, where a wide range of restrictive
conditions were applied by an inspector, including a detailed visitor
management scheme. Conditions or agreements relating to bus access may
be justified as part of the concept of green transport planning urged by
PPG13, but their utility has to be tempered by the ability of a particular
applicant to influence the way in which clients make their way to a proposed
enterprise.
I have a client who is considering making an application for a substantial
leisure complex just within an Area of Outstanding Natural Beauty (AONB)
designation, but should I be telling him not to waste his time and money?
The number of call-in or appeal cases involving large scale new build
developments within an AONB is very small indeed and hardly any have been
allowed. This is indicative of the very tight controls which are exercised in
AONBs as set out in PPG7, and the recent extension of National Park criteria
thereto only serves to tighten the screw further. Clearly very special
circumstances are needed to justify development within an AONB. The well
known Center Parc case at Longleat in Wiltshire is one example where ten
years ago economic need, enabling gain and a discreet location in woodland
combined to tip the balance in favour of permission after call-in. Another
situation where permission may possibly be contemplated would be where
landscape quality has already been severely compromised but this would be a
very exceptional circumstance. My advice, without knowing the planning
context and history of your client's land, is that the attainment of planning
permission is extremely unlikely.
A local farmer has been running a “maize maze” attraction in a field using
another field as a car park. This has been very popular but has created a
create deal of congestion and annoyance to myself and other residents living
close to the narrow lane which serves the site. The use has now ceased as
the corn has been harvested for animal feed, but what planning controls are
possible in anticipation of resumption next year?
This activity is a material change of use of the land while it lasts but may
operate for 28 days in any calendar year using the rights given in Part 4 Class
B of the GPDO. You need to ask your local planning authority to advise the
farmer in question of this limitation and to request a planning application from
him if it is intended to exceed the 28 day allowance in 2004.
Are you aware of any case law on the use of football stadiums for pop
concerts? I am aware of the Twickenham case which ruled that the stadium
did not have a D2 use but believe there was another case recently which
considered the point. Presumably, a one-off concert would be considered
“incidental” but if held on a regular basis would involve a material change of
use?
In the case to which you refer, Rugby Football Union (RFU) v Secretary of
State for the Environment, Transport and the Regions [2002], the courts
upheld an inspector’s ruling that Twickenham stadium was not a “concert
hall”. The RFU had argued that a “concert hall” and “concert arena” both fell
within Class D2, as did use as a sports stadium. However, it was adjudged
that the stadium could not be a concert hall within the meaning given in the
Use Classes Order because it was not enclosed. It was necessary for the
physical characteristics, in this case a roof, to be present for the change of
use to be exploited. I agree that a single concert would be considered an
incidental use. Clearly, the point at which any further events would trigger a
material change of use and require permission is a matter of fact and degree.
I am not aware of any other case that has considered this matter. Can any
reader help?
Response
The Safety at Sports Grounds Act 1975 requires a safety certificate for the
admission of spectators for whatever purpose, in which the controlling local
authority must specify the 'permitted activities'. My authority made a
conscious decision to specify only football matches. This means that any
special activity like a pop concert requires a specific amendment to the
certificate, if indeed the authority considers that such an event should be held
at all. It enables the dynamic testing of stands to be conditioned, plus the
assessment of special means of escape, given that stadiums are usually
designed for a restricted number of seated spectators and not a leaping crowd
on a pitch area. Each event can therefore be subject to its own particular
requirements. But the legislation does not control the effects such a use could
have on the surrounding area and it therefore seems up to planning legislation
to control both those and the principle of the use. However, if each concert is
treated as a one-off within the Safety at Sports Grounds Act, it follows that
treating a pop concert as 'incidental' in planning use terms weakens the
proper regulation of both safety within, and the effects outside, the venue in
question.
Are football stadia classed as 'greenfield' land? Whilst on the face of it this
may seem obvious, PPG3 does not specifically refer to such grounds and
their facilities. The definition of previously-developed land excludes parks,
recreation grounds and allotments. Given that major football stadia contain
much more than grass: notably stands, restaurants, conference facilities and
so forth do they fall into this category?
I can find no case where this matter has been debated. As you say, recreation
grounds are specifically excluded from the definition of previously-developed
land set out at Annex C of PPG3. However, while sports pitches and other
recreation grounds may retain their overall character as undeveloped areas of
open space, despite the presence of urban features such as pavilions and
other buildings, these can be distinguished from stadia, which are essentially
playing areas that are enclosed and dominated by built development of a
distinctly more urban nature and appearance. The matter is therefore
arguable. Readers’ views are invited.
18.4/10 Q & A
We act for a client proposing a children's animal farm as a form of rural
diversification. The council is recommending approval subject to an
agreement or condition limiting visitor numbers and the use of best
endeavours to secure bus provision. We wonder whether these requirements
are acceptable and if there are precedents?
Allowed cases relating to this type of use do not often feature at appeal.
However, looking at rural visitor attractions as a whole it is clear that local
authorities are rightly concerned to secure that such developments, if
acceptable in principle, remain limited in their capacity, and do not grow into
enterprises which would create highway/amenity problems, or cause
landscape harm. The problem with visitor number ceiling conditions is
enforceability, and curbs on the amount of parking or opening hours are often
looked at as better alternatives. However, reference has to be made to the
Yorkshire Dales case (see Casebook 25 August 2000: DCS No.036-562-616 )
concerning a garden open to the public, where a wide range of restrictive
conditions were applied by an inspector, including a detailed visitor
management scheme. Conditions or agreements relating to bus access may
be justified as part of the concept of green transport planning urged by
PPG13, but their utility has to be tempered by the ability of a particular
applicant to influence the way in which clients make their way to a proposed
enterprise.
I have a client who is considering making an application for a substantial
leisure complex just within an Area of Outstanding Natural Beauty (AONB)
designation, but should I be telling him not to waste his time and money?
The number of call-in or appeal cases involving large scale new build
developments within an AONB is very small indeed and hardly any have been
allowed. This is indicative of the very tight controls which are exercised in
AONBs as set out in PPG7, and the recent extension of National Park criteria
thereto only serves to tighten the screw further. Clearly very special
circumstances are needed to justify development within an AONB. The well
known Center Parc case at Longleat in Wiltshire is one example where ten
years ago economic need, enabling gain and a discreet location in woodland
combined to tip the balance in favour of permission after call-in. Another
situation where permission may possibly be contemplated would be where
landscape quality has already been severely compromised but this would be a
very exceptional circumstance. My advice, without knowing the planning
context and history of your client's land, is that the attainment of planning
permission is extremely unlikely.
4.2523 Areas of Outstanding Natural Beauty
The concept of Areas of Outstanding Natural Beauty (AONB) came from the
National Parks and Access to the Countryside Act 1949 which gave the
National Parks Commission the power to designate such areas. This power
has now passed to Natural England. There are currently 36 AONBs in
England, covering 15% of its land area. AONB locations are widespread and
embrace attractive upland and coastal areas.
A Ministerial Statement issued in 2000 gave AONB’s the same level of
protection in relation to conservation of scenic beauty as National Parks. This
policy approach was then embodied in the updated 2004 PPS7 and the same
tests now apply to the assessment of major development proposals, whether
the site is in an AONB or a National Park. The conservation of natural beauty
is given ‘great weight’ in both types of designated area. However, while the
conservation of wildlife and cultural heritage is an important consideration in
the assessment of development proposals in AONB’s, such issues do not
carry the same weight that they do if the site is within a National Park where
this is a specific purpose of designation.
Applications for planning permission within AONBs are varied but are
normally for small scale proposals reflecting local needs related to housing,
agriculture, recreation and tourism, or concern replacement and extension of
existing dwellings. Settlements within AONBs are sometimes “washed over”
by the designation, giving rise to considerations as to whether infill
development is acceptable therein.
The following appeal cases illustrate some typical decision making situations
which arise in AONBs.
National or strategic need:
•
Stadium: Community Stadium for Brighton & Hove Albion football team
allowed by SOS after a previous permission was quashed by the High Court
in 2006. In allowing the development, the SOS concluded that the need for
the Stadium overrode harm to the South Downs AONB and there was no
suitable alternative site that was acceptable in planning terms.
•
Wind Farm: A 20 turbine wind farm was rejected after an inspector
decided that they would introduce strong vertical elements into a flat
agricultural landscape dominated by horizontal features This harm
outweighed the need to promote renewable energy, see East Lindsey
22/06/2004 DCS No 049-490-234 .
•
Gravel working: An Inspector used the 2000 Ministerial Statement that
confirmed the landscape quality of AONB’s to be of equal status to that of
National Parks, to support dismissal of an appeal which sought the
resumption of gravel working at a site that had been dormant, see West
Berkshire 24/07/2001 DCS No 046-093-319 .
•
Oil and gas: A drilling facility for hydrocarbons was proposed in an
AONB in Kent. An inspector identified the need for further oil and gas
resources and the potential contribution that they might make to the national
wealth. The landscape impact of the proposal would be alien and intrusive,
but temporary. The development was allowed subject to rigorous conditions,
see Kent 31/08/1989 DCS No 035-993-776 .
•
Motorway Service Area: A motorway service area was proposed on the
M20 in Kent. The SoS noted that part of the site lay in an AONB. He felt that it
was axiomatic that motorway service areas should be in rural areas and
considered that the strong strategic case for the development should
exceptionally override policies of restraint, see Maidstone 20/07/1989 DCS No
032-855-258 .
•
Business Park: A 30 ha. B1/B2/B8 Business Park was proposed on
AONB land fringing Paignton. The SOS considered that there would be
substantial local and regional economic gains arising from the development
but these were more than outweighed by wholly unacceptable harm to the
Dart Valley AONB “one of the finest riverine landscapes in the country”, see
Torbay 29/10/1997 DCS No 035-382-982 .
•
Substation and pylons: The National Grid Company proposed a
transformer substation and tower together with associated overhead line
pylons. The site was within an AONB and it was argued that the additional
cost of this facility sited elsewhere would be £10.5m. The SoS thought that it
was inconsistent with AONB designation to permit major industrial or
commercial development. Serious harm would be caused to the landscape
and ecology of the area, which was not outweighed by a proven national
need, see Basingstoke & Deane 08/11/1991 DCS No 035-162-438 .
•
Centre Parc: A Centre Parc holiday village comprising 600 villas and
recreation facilities was called-in. The site was in a wooded area at Longleat
in Wiltshire and within an AONB. The development required an environmental
statement. The SoS considered that with careful siting, design and layout and
appropriate screening the development could be contained within the wood
without visual intrusion. Although such a major development would not
normally be admissible within an AONB, the development was in the national
interest. There were alternative sites available for such a development which
were not within an AONB but taken as a whole the benefits of the scheme,
such as tree planting and employment gain, outweighed harm to policy, see
West Wiltshire 04/08/1992 DCS No 053-527-292 .
•
Holiday Village: A holiday village development proposed by Rank
Holidays and Hotels Developments Ltd was allowed in an AONB. The SoS
accepted arguments that there was a strategic need for the development in
this general location. There would be some harm to the AONB but this was
outweighed by the advantages of the proposal, see Shepway 01/2/1996 DCS
No 046-106-760 .
Tourism:
•
Children’s Recreation & Study Centre: An inspector was concerned
that increasing facilities and accommodation at a Children’s Recreation &
Study Centre would result in increased noise and disturbance to the detriment
of the remote and tranquil nature of the AONB. In reaching this decision, the
inspector noted that although there were benefits associated with increasing
enjoyment of the countryside, the aim of protecting the AONB was paramount,
see Chichester 19/06/2003 DCS No 030-467-925 .
•
White Horse: A 200 sqm white horse created using a chalk line cut out
of turf on a prominent hill-side was allowed by the SOS who considered that
the creation of a landmark was justified by the promotion of local pride and
economic benefits from tourism, see Shepway 27/03/2002 DCS No 045-956097 .
Shepway: White horse benefited local pride
•
Lodges: The impact on a single viewpoint was considered to be
sufficiently harmful to the scenic quality of the AONB to justify refusal of five
timber holiday lodges in a wooded valley, an extension to an existing Chalet
Park, see Harrogate 29/05/2002 DCS No 042-013-250 .
•
Wild animal enclosures: An enforcement notice alleged that a farm
park was keeping and displaying exotic animals in breach of a condition. The
appellant accepted that 7 enclosures had been erected for keeping a young
tiger, two mature tigers, two pumas and a jaguar. An inspector concluded that
the enclosures and associated fences and pathways would harm the
character of the AONB since they would be more akin to a zoo than farm
enclosures. The notice was upheld and the period of compliance extended to
six months, see Cotswold 28/08/1998 DCS No 051-597-876 .
Redevelopment of existing buildings:
•
After considering a called in application for redevelopment of an
industrial site for 70 dwellings outside a village, the SOS decided that there
was no conflict with current policy and there would be positive benefit to the
AONB from the removal of an intrusive group of unsightly buildings in the
landscape, see West Berkshire 22/04/2002 DCS No 044-623-745 .
•
Retirement housing was proposed on the edge of a village within an
AONB. The site comprised a derelict filling station and a part of an adjoining
field. An inspector was satisfied that the building in terms of its scale, massing
and height and use of vernacular materials was acceptable. It would not
cause unacceptable harm to the AONB and an eyesore would be removed.
Costs were awarded to the appellant in this case for not substantiating the
reasons for refusal, where officer advice had been ignored, see South
Lakeland 26/07/1989 DCS No 035-011-046 .
4.2514 Very special circumstances
The ‘very special circumstances’ test, which needs to be applied if it is found
that there would be conflict with green belt policy, is embodied in para.88 of
the NPPF, which reflects previous guidance in PPG2. This explains that very
special circumstances will not exist unless the potential harm to the green belt
by reason of inappropriateness, and any other harm, is clearly outweighed by
other considerations. It is evident from the various court cases that have
considered this issue that it has caused difficulties for both inspectors and
practitioners. If the very special circumstances test is not applied a decision
could be struck down by the courts -see South Bucks DC v SoS & Another
18/3/1992 at 4.2519.
The most important court case to have reviewed the test is Wychavon DC v
SoS & Butler 23/06/2008, when the Court of Appeal considered whether an
inspector had taken the correct approach to very special circumstances when
granting temporary planning permission to retain an unauthorised gypsy
caravan site for one family on land within a green belt; see Wychavon
05/02/2007 DCS No 100-047-182 . The inspector had concluded that while
none of the individual factors amounted to very special circumstances, when
added together they were sufficient to meet the test set out at para.3.2 of
PPG2. The High Court ruled on 20/12/2007 that the inspector’s reasoning had
been erroneous and that he had not applied the very special circumstances
test properly, so quashed the decision. In the court’s view the aggregation of
three commonplace factors could not amount to very special circumstances.
However, in reinstating the inspector’s decision, the Court of Appeal ruled that
although the inspector’s conclusion that very special circumstances existed to
justify development in green belt was generous, it was nonetheless lawful.
The High Court had been wrong to treat the words ‘very special’ in para.3.2 as
simply the converse of ‘commonplace’. “Rarity may of course contribute to the
‘special’ quality of a particular factor, but it is not essential, as a matter of
ordinary language or policy. The word ‘special’ in the guidance connotes not a
quantitative test, but a qualitative judgment as to the weight to be given to the
particular factor for planning purposes”. There is no reason, in terms of policy
or common sense, why the factors that make a case ‘very special’ should not
be the same as, or at least overlap with, those that justify holding that green
belt considerations are ‘clearly outweighed’.
In Herba Foods Ltd v SoS South Cambridgeshire DC 10/12/2008 it was held
that, in dismissing an appeal related to the extension of a rice mill to provide
additional storage, see South Cambridgeshire 28/03/2007 DCS No 100-048058 , an inspector had applied the wrong approach to the ‘very special
circumstances’ test. The inspector had considered that, although small, the
extension encroached on green belt land and the company’s need for the
development did not constitute very special circumstances. The court ruled
that it was clear that the inspector gave less weight to the need for additional
storage because he regarded it as a commonplace consideration. He was
wrong to do so and the approach of looking for an unusual or rare factor was
erroneous. The words ‘very special’ were not to be treated as the converse of
‘commonplace’. This decision echoes the approach taken in Brentwood BC v
SoS 22/4/2008. Here, an inspector’s decision to grant temporary permission
for 5 gypsy mobile homes and day rooms on agricultural land within a green
belt area was challenged, see Brentwood 25/04/2007 DCS No 100-048-932 .
The court held that a ‘very special circumstance’ could be something that was
a commonplace factor that would normally arise as a consequence from
refusal of planning permission - in this case homelessness and disruption to
family life.
Further court cases of particular note include the following. Others are
included at the end of this section.
•
In The River Club v SoS 07/10/2009 it was held that, in dismissing an
appeal involving the retention of an unauthorised fitness studio at an extended
health and social club on metropolitan open land (MOL), see Kingston-uponThames 23/07/2008 DCS No 100-056-783 , an inspector’s decision did not
demonstrate that he had dealt with the cumulative position of very special
circumstances. However, while such an assessment requires a careful
evaluation of all factors relied upon, both individually and together, the
decision-maker does not need to quantify the weight given to each
circumstance. The appellants had argued that harm to the MOL from
inappropriate development and loss of openness was outweighed by very
special circumstances, which included the financial viability of the club and the
provision of a local community facility. The court also interpreted the reference
in para.3.2 of PPG2 to ‘any other harm’ as any planning harm rather than
merely any other harm to the green belt. Following redetermination, a second
inspector also dismissed the appeal after finding that any need could be met
in a more sustainable way on alternative sites and that no accounts had been
made available to verify the claimed need in terms of business viability, see
Kingston-upon-Thames 07/06/2010 DCS No 100-067-622 .
•
A council challenged an inspector’s decision to allow the continued use
of a building in the green belt as offices for a mortgage firm, see Cherwell
08/02/2006 DCS No 100-041-052 . However, the court held that the inspector
had been entitled to find that, while the use of the land did constitute
inappropriate development in the green belt, it was justified by very special
circumstances. The council, which had granted a temporary three-year
planning permission in May 1999, objected to renewed permission because of
increased traffic flow caused by the development. But the court backed the
inspector’s finding that plans to limit staff traffic flow would sufficiently reduce
the harm. While the case was finely balanced, the inspector was entitled to
find that this constituted very special circumstances justifying the grant of
permission - Cherwell DC v SoS 14/9/06.
•
In R (Winter and Others) v SoS and Cambridge DC 6/12/2004, the
High Court reviewed a decision to refuse permission for a gypsy caravan site
within a green belt, see South Cambridgeshire 01/07/2004 DCS No 039-676654 . The claimants argued that the SoS had failed to consider the cumulative
effect of the various personal circumstances (in particular, health and
education) when deciding whether the appellants had made out a case that
very special circumstances existed. It was claimed that the SoS’s inspector
had appeared to approach the matter on the basis that each matter relied on
had to be shown to be very special before it could, in combination with others,
be held to amount to very special circumstances. A second ground of
challenge was that the decision-making was unsatisfactorily reasoned,
particularly with regard to the weight, if any, that was attached to the individual
circumstances (in particular those relating to health and education) when they
were evaluated. The court rejected both grounds. The approach adopted was
correct and properly reasoned.
•
A council challenged an inspector’s decision to grant permission for the
retention of two gypsy caravans, see Basildon 03/03/2004 DCS No 055-054657 . In upholding the inspector’s decision, the High Court held that a number
of factors, none of them "very special" when considered in isolation may,
when combined together, amount to very special circumstances. Whether any
particular combination amounts to very special circumstances will be a matter
of planning judgment for the decision-taker. The inspector had decided that
very special circumstances existed, which included the lack of alternative
gypsy accommodation and the site’s access to shops and schools. There was
no basis for criticising the inspector’s conclusions - R (Basildon DC) v SoS &
Temple 8/11/2004.
Precedent for similar developments:
A ‘very special circumstance’ will not normally be considered to create a
precedent where a particular development, site characteristics or planning
history is unique to an area. However, if there is a possibility that the very
special circumstances could be replicated leading to a number of permissions
that would in turn degrade a stretch of green belt, this may be a potent reason
for rejecting them, as demonstrated in Doncaster MBC v SoS 10/4/2002.
Here, in quashing an inspector’s decision relating to an authorised gypsy
caravan site, see Doncaster 20/07/2001 DCS No 030-755-053 , the court
stated, in relation to the decision-making test set out in national planning
policy, that it is very important that full weight is given to the proposition that
inappropriate development is by definition harmful to the green belt. “The
policy (at that time set out in PPG2) 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”. The Doncaster court case is discussed at 4.251 in further detail.
Concerns over establishing an undesirable precedent also featured in the
various Samuel Smith court cases that resulted in the repeated quashing of
planning permissions granted for a large equestrian development in the
Leeds/York green belt, which are discussed above under the heading of
‘Essential/small scale facilities’ and, in particular, Samuel Smith Old Brewery
(Tadcaster) v Selby DC 16/4/2003.
Other cases of interest that deal with the precedent point follow.
•
A new factory was proposed for JCB. An inspector gave weight to the
precedent factor as he thought that this firm’s special economic pleading
could be replicated, but his recommendation to refuse the development was
overturned by the SoS, see Staffordshire Moorlands 12/03/1993 DCS No 043992-323 .
•
A proposal to extend a green belt nursing home was considered. It was
argued that new standards required the extension without which the business
as a whole was imperilled. An inspector agreed that the home could not
continue to operate at a loss and closure would create great trauma and
disturbance to existing residents. This constituted very special circumstances
and the appeal was allowed. The inspector added that the decision should not
be used as a basis justifying other inappropriate proposals, see Walsall
07/10/2003 DCS No 042-954-029 .
The following cases illustrate various examples of very special circumstances
which have been argued, and in practice it is often a combination of several of
these that may prove persuasive.
Economic need:
In practice it is difficult for a developer to be able to claim very special
economic circumstances such as would override the restrictiveness of
national green belt policies, but a larger development may have more chance
of so doing than a smaller one. Many of the cases noted at 4.2518 were
allowed because of a compelling national or regional economic need or other
strategic benefits.
While very special circumstances may be claimed for many types of lesser
developments, overriding economic or infrastructural gains are unlikely to be
on offer. However, in R (Siraj) v Kirklees Metropolitan Council and Bennett
21/10/10, a council had found very special circumstances justifying the grant
of planning permission for a tractor workshop within a green belt area. The
Bennetts' business was the only agricultural machinery engineering firm in a
wide area and hundreds of farmers depended on their service. Following
rejection in the High Court, a local resident argued before the Court of Appeal
that the council’s decision was perverse and it had failed to give adequate
reasons in granting permission in 2007. In response, the council highlighted
the planning officer’s report, which had clearly set out the very special
circumstances that had applied to the proposal. These included a lack of
alternative sites, the need for the business to be sited in the countryside and
the boost it would give to the local economy. The court agreed that the council
had been properly advised on green belt policy and on the need for the
applicant to demonstrate very special circumstances. There was a
requirement for the council to give ‘summary reasons’ for its decision, but
there was no reason to suppose that the councillors had forgotten the need to
adopt a balancing exercise when seeking to approve an inappropriate
development in the green belt.
The needs of individual businesses, including viability issues, are considered
in the next section. Appeal examples relating to wider economic benefits from
a proposed development follow.
•
Permission was sought for the redevelopment of a former agricultural
research station in a green belt to provide around 17,100 sq m of office space.
The site had the appearance of a business park with scattered buildings,
glasshouses and large car parks set within mature landscaping. The
appellants claimed that 40% of the buildings were vacant and without some
form of new investment the business park was likely to continue to decline. A
council survey suggested that there was unlikely to be sufficient employment
land in the future to meet expected demand. The scheme would involve some
loss of the mature landscaping and would entail a 20% increase in the volume
of existing buildings and a 21% increase in hardsurfaced areas. Nonetheless,
the need to provide more space of an improved quality and the requirement to
promote economic growth all weighed in favour of the development. These
amounted to the very special circumstances required to grant permission, see
Epping Forest 03/07/2012 DCS No 100-077-787 .
•
A scheme involved the construction of a 12,000-seat stadium for use
by a club within the rugby super league together with a 120 bedroom hotel,
14,000 sq m of Class B1 uses and over 146,000 sq m of warehousing and
distribution floorspace. A multi-use games area was also proposed. The site
lay within a green belt. The applicants stated that there was a need to provide
a stadium that would meet the requirements of the super league and would
improve civic pride. The club had gone into administration and the package of
uses would ensure that the stadium could be financed without recourse to
government grants. The SoS agreed that the scheme would be inappropriate
development harming green belt openness. However, this harm was
outweighed by very special circumstances. The proposal would deliver a wide
range of benefits. It would provide for economic growth and a new community
stadium would bring wider sporting, health and lifestyle opportunities. It would
assist in remediating the impact of an inadequately restored former colliery
including 13 mine shafts. The club was also at the heart of the local
community. There was a commitment to build the stadium with money raised
from the enabling development. 2000 jobs would be created and there would
be a £2 million cross subsidy However, a final decision was deferred to allow
the details of a sec.106 obligation to be agreed, see Wakefield 20/06/2012
DCS No 100-077-702 .
•
A scheme proposed around 86,100 sq m of Class B1, B2 and B8
employment floorspace, a hotel and crèche on almost 35ha of land. The
applicant stated that the scheme was intended to promote the economic and
social wellbeing of the area and the site had locational advantages, which
would improve both the quality and quantity of employment land. Various
conditions were proposed to limit the amount of built development on the site
and the mix of employment uses. The site's location on the inner margin of the
green belt and the high quality design and landscaping proposed would limit
the degree to which it would encroach on the countryside and reduce the
openness of the green belt. An inspector decided that there was little doubt
over its adverse impact on the openness of the area and that it would involve
significant built development in the countryside. Of equal concern was the
potential for it to undermine the regeneration of brownfield sites within the
urban area. The evidence indicated that adequate employment land was
already available. The provision of 'high end' office floorspace supported by
warehousing and distribution floorspace had not been justified. While the
delivery of employment accorded with the government's desire to stimulate
economic development, this had to be consistent with the overarching aim of
delivering sustainable development. The SoS agreed that the justification for
the development was 'somewhat light', particularly since another site was
available to deliver office floorspace. The site was poorly served by public
transport and the scheme was contrary to the majority of green belt
objectives. It would not be located within a key economic hub and was largely
unsustainable. Delivering up to 2,400 jobs did not outweigh these conflicts,
see Thurrock Thames Gateway 18/10/2011 DCS No 100-074-426 .
Thurrock Thames Gateway: scheme was contrary to the majority of green belt
objectives
•
A sporting and recreational facility in a new forest park near Salford
was proposed. An inspector considered that the proposal would involve
inappropriate development spread over a wide area, which would result in
sprawl and urbanisation. There would be about 2ha of new built development
which would have a significant negative impact on the openness of the area.
The large new structures included a grandstand building, an equestrian
centre, hotel, eco-village, timber workshop and golf course club house. New
roads, lighting of roads and racetrack, hardstanding and car parking and
substantial activity on the site would also impact adversely on openness. The
inspector gave limited weight to the factors of delivery of regionally significant
facilities and a high profile development to enhance the image of Salford
advanced by the appellant. He ruled that the evidence failed to establish any
need for the facilities, still less any need for inappropriate development. He
recognised that in the current economic climate the level of job creation
proposed in an area of economic need would be a significant economic
benefit. He also considered that the proposal had the potential to increase
tourism but that the evidence was not clearly established. The inspector
concluded that the benefits of the proposal did not clearly outweigh the totality
of harm to the green belt. The SoS agreed; see Salford 13/01/2010 DCS No
100-065-926 .
•
It was proposed to use part of a quarry for the recycling of secondary
aggregates. It was argued that very special circumstances existed in terms of
the financial and policy benefits of this reclamation use. An inspector
considered that the development would harm openness and while
acknowledging national and local policy support for this type of activity there
appeared to be no essential need. There were other waste recycling and
transfer sites in the locality, see Oxfordshire 03/03/2003 DCS No 040-073-637
.
•
A state of the art abattoir and meat packing plant was proposed. The
scheme involved the construction of a purpose built plant containing an
integrated process for slaughtering, refrigeration and meat packing and would
be the first ever facility in the United Kingdom. The processes would be
contained in a building extending to 6,495m2 and would create 100 additional
employment opportunities. The appellant argued that it was necessary to
relocate the existing abattoir at Linlithgow and the choice of sites was in part
influenced by the need to retain the existing workforce. Moreover it was
necessary to prove grazing for the animals before slaughter, in order to
reduce the levels of stress. The new process was also designed to comply
with significantly more onerous post BSE and foot and mouth regulations and
all waste would be stored on site before being burnt to produce heat and
power. The council opposed the scheme because it conflicted with green belt
policy and would cause significant harm to the landscape. A reporter
concluded that the processes proposed were industrial in character and while
alternative sites had been examined, she held that the assessment had not be
exhaustive. Consequently it was not possible to conclude that a less sensitive
site outside the green belt could not be found. However the reporter accepted
that provided the use was restricted by condition, the development
represented a special case which should be allowed as an exception to the
stringent embargo on development in the green belt. It was important to
maintain existing employment opportunities and create new ones and it was
wrong to ignore the lessons from experiences such as the foot and mouth
disease. It was concluded that there was a special, clear and potentially
national need within the abattoir and meat packing industry to create a regime
which could minimise the outbreak of the disease or any related diseases,
should they recur, see Falkirk 18/02/2003 DCS No 051-219-608 .
•
A proposal by Jaguar Cars Ltd and Coventry City Council comprised a
mixed business park comprising primarily offices, research and development
and light industrial, general industrial, hotel with associated leisure facilities
including conference facilities, local retail store of 300 sq m and children's
crèche within the Coventry green belt. The application was called-in. The site
lay adjacent to Jaguar's engineering centre and the council fully supported the
scheme on the grounds that there was an urgent need to bring forward land
for employment of international/national quality to replenish the city's
dwindling supply. The council had been unable to identify any suitable
brownfield sites for the development proposed. An inspector concluded that it
would harm the green belt and would conflict with trunk road access policy. In
addition whilst the environmental statement complied with the regulations a
local nature conservation area would be harmed. However in undertaking the
balancing exercise the inspector held that there were very special
circumstances justifying permission. These included the strong need for
additional employment land given a serious shortfall. It would create up to
2,500 jobs which would redress some of the unemployment in areas close by
and which were abnormally high. Accordingly it would be sustainable and a
sec.106 obligation included a green travel plan and mitigation of landscape
and conservation area impact, see Coventry 14/11/2001 DCS No 032-568941 .
•
An extension was proposed to a high technology business outside
Cambridge within the green belt. A unilateral obligation required the
implementation of a transport plan which included the setting up of a travel
plan co-ordinator. There was a strong need for the company to be located on
a single site in order to benefit from interaction and a stimulating environment.
Whilst other sites might be available, a wholesale move could be disruptive in
terms of on-going experimentation. The development plan supported the
growth of high technology industry. It would reduce the openness of the green
belt but would not harm the setting of Cambridge. The transport plan met
sustainability objectives. The SoS concluded that there were material
considerations in favour which outweighed the green belt and landscape
harm. The balance of the development plan policies was in favour and the
benefits to the national economy were compelling, see South Cambridgeshire
17/08/1999 DCS No 038-262-672 .
•
Two applications were called in by the SoS related to industrial
development on two nearby sites alongside the Sutton Coldfield bypass at
Minworth. One application was specifically for a microelectronic fabrication
plant and was promoted by the West Midlands Development Agency, and the
other for B1/B2 uses submitted by P&O Properties Ltd. There were no named
potential occupiers in either case. The SoS had no difficulty in establishing
that both schemes were inappropriate in green belt terms and meant an
“unacceptable loss of good agricultural land”. However, he noted that RPG11
recognised that the lack of sites for major inward investment was holding back
economic development in the West Midlands. RPG11 recommended that up
to 2 large sites should be provided at a minimum of 50 ha each and each
occupied by a single multinational company. He also noted a study completed
by the West Midlands Regional Forum of local authorities that concluded that
there were no suitable brownfield sites in the region, and took on board the
point that a microelectronics plant would require a site free of noise, vibration
and other disturbance which could arise on certain brownfield sites. The study
also identified Minworth as one of the two priority areas in the region for
locating major industrial investment. It was concluded that, in view of the
needs of other parts of the region, it would be preferable to grant permission
for one site only in this locality. In addition the combined effect of granting
permission for both sites would create severe harm to the green belt, the
highway network and good quality agricultural land. The SoS agreed with his
inspector that there was little to choose between the two sites in terms of the
balance between benefits and disbenefits but came down in favour of that
being promoted by the WMDA. This site was in the sole ownership of the city
council made it more certain of delivery. Also the site was being promoted by
WMDA on behalf of a specific, but unidentified, prospective occupier. It was
also noted that the potential release of receipts for urban regeneration would
only be available if permission were granted for this scheme, see Birmingham
07/08/1997 DCS No 033-321-256 .
•
Vauxhall Motors proposed to use green belt/AONB land, formerly a test
track, as a vehicle storage and distribution centre. The proposal also involved
the erection of a pre-delivery inspection building and other structures. While
the SoS was not convinced that the site as existing qualified as a major
developed site in PPG2 terms, he felt that there were special circumstances
warranting a departure from policy. He took on board the appellant company’s
assertion that it faced severe competition and was under constant pressure to
drive down costs. His overall conclusion was that the economic arguments for
the development should be accorded considerable weight and that the
possible avail-ability of alternative sites did not significantly weaken these
arguments. He was minded to allow the development if the alignment of the
access road could be achieved, see South Bedfordshire 24/07/1995 DCS No
047-261-997 .
Business need:
The needs of individual businesses, as opposed to the wider economic
benefits that would result from a proposed development, are often argued as
a very special circumstance, although in the Samuel Smith case detailed
above, a desire to expand one's business does not amount to 'very special
circumstances'.
Another court case of relevance is Summers Poultry Products Ltd v SoS
17/2/2009. Here, an extension to a Halal slaughterhouse in the West Midlands
green belt had been rejected, see Stratford-upon-Avon 05/06/2008 DCS No
100-055-801 . It was argued that the outcome would be closure of the
business due to the need for the additional space in order to comply with new
stringent food hygiene regulations. The inspector should have considered this
as a very special circumstance. The court ruled that the inspector had not
found that the need to comply with the new regulations was not capable of
being a very special circumstance, only that it did not enable any building to
be built without due regard to green belt policy. The inspector recognised that
failure to modernise could result in closure and the loss of jobs. However, he
heard no convincing evidence to show why the building could not be
refurbished to meet current regulations without major extension, albeit with a
loss of capacity. He acknowledged that this might affect viability but held that
closure, refurbishment or relocation was ultimately a business decision for the
owners and operators.
Stratford-upon-Avon: closure, refurbishment or relocation was ultimately a
business decision
Further appeal examples follow.
•
Two enforcement notices required the removal of a portakabin and a
lorry body at a livery in a green belt. The lorry body was used for the storage
of fodder while the portable building was used for workers at the livery,
comprising one full-time and two part time employees. An inspector noted an
earlier decision by one of his colleagues who had accepted that a livery use
was acceptable but not structures associated therewith, which would lead to
an unacceptable proliferation to the detriment of the green belt. However, the
portakabin and lorry body had been re-sited close to an existing compound
and were not spread out as originally proposed. The openness of the green
belt had not been affected, although they were technically inappropriate as
they were not directly related to outdoor recreational use. It was also
important to recognise the fallback position. The appellant stated that, in the
event that the portakabin and lorry body were required to be removed,
caravans or mobile homes would be brought onto the site. These would not
require permission provided they were used in accordance with the judgment
in Wealden DC v SoS 1986. While the development was inappropriate, it was
outweighed by the claimed business need and declared fallback position,
which could cause more harm, see East Dorset 15/02/2012 DCS No 100-075963 .
•
An extension was proposed to a garden centre in the Lancashire green
belt, to provide a café, kitchen and toilets. This would increase the volume of
the main building by around 30%. The appellant stated it would assist in
increasing visitor numbers and turnover, with the cafe generating a profit
within 12 months of opening. An inspector accepted the council's claim that
the scheme was inappropriate to a green belt and would lead to some
reduction in the general openness of the area. However, the appellant had
taken over the garden centre after the previous business had gone into
administration and had pursued a programme of restocking and
refurbishment. The scheme would initially create two full-time jobs and one
part-time opportunity. It would make a modest contribution to the local
economy and safeguard existing jobs. The longer term viability of the
business was an important material consideration given the government's aim
of fostering economic growth to ameliorate the impact of the recession. It
would also provide a much-needed facility for customers. These
considerations outweighed the presumption against inappropriate
development in the green belt, see Wigan 21/12/2011 DCS No 100-075-479 .
•
Permission was sought for a smokery at a trout fishery for use by
visiting anglers and corporate clients, thereby adding to the profitability of the
existing business. Any excess capacity would be used to smoke fish for local
pubs and restaurants. The appellant considered that the ability to smoke fish
was essential to the viability of the existing recreational use. However, the
inspector found no evidence to suggest that the absence of a smokery
deterred anglers from using the fishery in any way, noting that the business
had been in profit for a number of years. In addition to the smoker, the
proposed building would be used to provide a pump room and storage for
nets and equipment needed to manage the stock pond. The inspector
accepted that the pump room and store were essential to support the existing
angling activity but noted that they would occupy only a quarter of the
proposed building. Taken as a whole, therefore, she decided that the proposal
would constitute inappropriate development in the green belt. The building
would occupy an area that was currently undeveloped and so would reduce
openness. The benefits of diversification and the small scale of the proposed
business, together with the absence of any buildings suitable for re-use, lent
support to the proposal. However, the inspector decided that these were
insufficient to clearly outweigh the substantial harm to the green belt, see
Tunbridge Wells 14/04/2010 DCS No 100-067-272 .
Housing need:
It is unusual for green belt land to be released for housing outside the
development plan process, although this may be justified in order to satisfy a
pressing housing need. Cases where this has been argued include the
following.
•
A proposed urban extension, to be located partly on green belt land,
included 1,150 dwellings, of which at least 10% would be affordable. A new
primary school would be built and a new road would provide access to the
development. This would also provide the ability to construct a further road
linking to the M55 motorway and the appellants had committed funds for its
ultimate construction. The council stated that its initial objections had been
overcome and advised that the chronic shortage of residential land and
significantly less than a two-year supply justified granting permission. An
inspector noted that the scheme did not comply with a local plan because it
lay outside defined settlement limits. The new road would lie within an area of
green belt and while this was inappropriate, he concluded that its impact on
the openness would be limited and it represented the only viable means of
accessing the development. The scheme would also deliver the new link road
to the motorway, which would support future development elsewhere in the
town. However, the SoS decided that the weight to be given to the regional
spatial strategy and housing requirements was substantially reduced following
the government's stated intention to abolish such strategic guidance. In
addition, he concluded that the weight given by the inspector to the delivery of
a new link road to the motorway had been overstated. It did not have planning
permission and there could be no certainty that permission would be granted.
Given the statutory tests laid down in the CIL Regulations 2010, the appeal
proposal could not be rendered acceptable by a road proposal that did not
form any part of the housing development. Moreover, the site was not well
related to the existing settlement. The SoS therefore rejected his inspector’s
recommendation and refused permission; see Fylde 30/06/2010 DCS No 100068-068 . The decision was quashed by the High Court on 14/12/10 and
remitted for redetermination. Following reconsideration, the appeal was
allowed. Circumstances had altered with the publication of the NPPF and it
was decided that the harm caused to green belt openness and coalescence
objectives by the inappropriate road scheme was outweighed by its
subsidised funding and housing supply needs, given that there was only 1.4
years’ worth of housing land available, see Lancashire 21/06/2012 DCS No
100-077-723 .
•
A scheme involved up to 350 houses in the Thames Gateway. Part of
the site lay within the green belt and the applicants stated that very special
circumstances had been demonstrated. These included the need to promote
sustainable urban extensions within a key centre for change and promoting
urban renaissance. It would promote new links to the countryside and open
space would provide the opportunity for outdoor recreation. Moreover, it would
make a significant contribution towards improving the delivery of both open
market and affordable housing. The SoS noted that while planning policies
accepted that there was a need to release some green belt land for
development and the core strategy identified the broad area as suitable for
development, it would fail to protect the countryside from encroachment.
However, this impact would be offset by opening up a large area of land to the
public for leisure and recreational purposes, and this benefit would be coupled
with an ability to redress the urgent need for additional housing land. Being
able to deliver a relatively high number of affordable units was also beneficial
given the impact of the recession on the supply of such accommodation.
Permission was granted; see Thurrock Thames Gateway 22/03/2012 DCS No
100-076-678 .
Thurrock Thames Gateway: scheme would help to redress the urgent need
for additional housing land
•
A 1,200 unit neighbourhood development on 106.5ha of green belt land
near Nottingham was proposed, see Rushcliffe 06/07/2009 DCS No 100-063322 . The SoS concluded that the scheme was inappropriate in policy terms.
However, there were very special circumstances that outweighed this harm.
There was an urgent need for the release of land for housing and the A52
formed a sustainable boundary to the south of the site.
•
An appeal involved up to 350 dwellings at a former quarry located in a
green belt. The SoS concluded that although the proposed development
would make a significant contribution towards meeting affordable housing
aims, this was outweighed by the harm caused to green belt policy and
regeneration aims; see South Staffordshire 30/10/2008 DCS No 100-058-472
.
•
Three appeals involved the provision of a total of around 370 dwellings
on land on the edge of Cheltenham and were called in for decision. The SoS
noted that although the land was in a green belt area there was a significant
shortfall in housing supply. The land was suitable for residential development
being sustainable, deliverable and sequentially preferable. There would be a
further gain from the delivery of 111 affordable homes and the provision of
sporting facilities. It was concluded that there were very special circumstances
outweighing green belt inappropriateness, see Tewkesbury 10/07/2008 DCS
No 100-056-480 .
•
A large housing scheme was proposed on a 13.75ha area of green belt
land, which mainly comprised a derelict former sports and social club,
underused allotment land and a Sunday market site. The latter, 3.5ha site,
had a fraught planning history, see 13.7371, and was mainly covered with
compacted hardcore. The development was considered to be inappropriate.
However, the SoS identified very special circumstances in terms of pressing
housing need, the provision of affordable housing, and a financial contribution
to much needed medical centre facilities. It was reasoned that effectively
removing this site from the green belt would not unacceptably harm the wider
green belt or render other green belt land more vulnerable to development.
The A21 would be an effective and defensible green belt boundary, see
Bromley 22/11/2007 DCS No 100-051-501 .
Bromley: removing this site would not unacceptably harm the wider green belt
•
26 houses were proposed on part of the site of a golf course in the
Greater Glasgow green belt. A reporter noted the strong presumption against
development but also the need to supply land for housing. There was little upto-date local policy on the matter but the situation was that the supply of
housing land had virtually dried up. The scheme would benefit the golf club as
the guardian of an important green wedge and there would be no other
significant harmful effects or precedent factor; see East Dunbartonshire
08/01/2001 DCS No 100-050-142 . The local authority challenged this
decision in the Court of Session. It was held that the reporter had been
entitled to come to the decision that he did and it was not irrational - East
Dunbartonshire Council v The Scottish Ministers 17/1/03.
Cultural, social or community benefits:
It may be argued that cultural, social or community benefits would occur as a
result of a green belt use.
In Jenkins v SoS & South Gloucestershire Council 15/11/2006 the High Court
quashed an inspector’s decision to dismiss various appeals involving the
provision of between 2 and 19 care sheltered dwellings at a nursing home in
the green belt, because very special circumstances had not been
demonstrated, see South Gloucestershire 18/01/2006 DCS No 100-040-723 .
The court held that the inspector had failed to take into account material
considerations, including evidence that a shortfall in care facilities in the local
area demonstrated that there was an acute need for extra provision, and
evidence from an accountant that pointed to the business no longer being
viable without the expansion. However, following redetermination, a second
inspector also dismissed the appeals after find that the evidence on need and
viability was not exceptional or sufficient to outweigh the harm that would be
caused to the green belt; see South Gloucestershire 16/08/2007 DCS No 100057-198 .
Other cases of interest follow.
•
The redevelopment of a 33ha NHS trust hospital site, partly located on
metropolitan open land (MOL), involved the provision of over 800 dwellings,
extra care apartments, an elderly persons' care home, retail and commercial
uses, employment and leisure and recreational facilities. The main hospital
building dated from the 1840s with later additions. The scheme would enable
mental health care facilities to be improved. The SoS agreed with his
inspector that the scheme would improve the openness of the MOL and,
although it would lead to the loss of a golf course, it would deliver the ability
for the public to access greater portions of the site. The impact on local roads
would be reduced following the upgrading of a local tube line and the ability to
improve housing supply and urgently needed mental health facilities also
weighed in favour of the scheme, see Wandsworth 20/06/2012 DCS No 100077-722 .
•
Permission was sought to construct a conservatory at a hospital within
a green belt. The appellant highlighted a code of practice issued in 2008,
which provided information on implementation of the Mental Health Act 1983.
It stated that as well as separate sleeping areas, separate male and female
toilets and bathrooms should be provided together with day rooms. The
council argued that the guidance did not amount to a statutory requirement.
An inspector noted that the conservatory would be attached to the main
hospital ward, which catered for patients with organic and functional mental
problems. Each group had its own day room but there was insufficient space
to allow male and female patients to occupy separate rooms. Re-using one of
the bedrooms would remove a vital mental health care bed and produce a
decrease in hospital income of £100,000 per annum. The retention of existing
facilities ran counter to government objectives for promoting sustainable forms
of development. The significant benefits of the scheme included providing for
the health, welfare and dignity of patients. In the absence of alternative
provision, these considerations amounted to very special circumstances that
outweighed the inappropriate nature of the scheme, see Staffordshire
Moorlands 27/06/2011 DCS No 100-072-846 .
•
An extension to a cemetery was proposed on MOL. It had been
established in the 1960s and distinct areas of it were used by four Jewish
communities. Both the council and the appellant agreed that the proposal did
not constitute inappropriate development in the green belt, with both referring
to para.3.4 of PPG2. However, an inspector pointed out that this dealt
specifically with the erection of new buildings whereas the proposed
development involved only a change in the use of the land and additional
hardsurfacing. Whilst the examples at para.3.4 included essential facilities for
cemeteries, it did not state that cemeteries, as a new land use, were not
inappropriate. So she considered that the relevant paragraph was 3.12, which
advised that the making of any material change in the use of the land was
inappropriate development unless it maintained openness and did not conflict
with the purposes of including land in the green belt. Having assessed this
matter in relation to the proposed cemetery extension, the inspector
concluded that it would materially reduce the openness of the green belt and
therefore constitute inappropriate development. However, turning to other
considerations, the inspector noted that the principal argument in support of
the appeal was the urgent need for additional space for at least two of the
communities. There were specific benefits to appeal proposal. These added
up to the very special circumstances necessary to justify the harm to the
green belt, see Barnet 12/08/2010 DCS No 100-068-629 .
•
A religious assembly room was proposed within the grounds of a multidenominational religious institution and the building was required for prayers
and meetings for up to 350 people. Such uses took place in the open air at
present. An inspector noted that the building would be largely screened by
planting, and the use already existed. In view of these facts it was considered
that there would be no adverse impact on the character of the area, although
some harm to green belt openness would occur. Very special circumstances
were identified by the inspector in terms of an essential need for this facility of
community value in a rural area and it was unreasonable for worshippers to
remain at the mercy of the elements, see Brentwood 19/02/2004 DCS No
034-525-610 .
Religious assembly room allowed in green belt
•
Training facilities and accommodation was required at Sunderland
Football Club’s Academy in a green belt area. The club argued that the
development was required to achieve the required level of excellence for
Premiership players. In addition community benefits would result from use by
amateur clubs and schools. The SoS held that while the pursuance of
excellence was a laudable aim it was not a very special circumstance. In
addition the scale of the buildings did not reflect the club’s need, see South
Tyneside 10/11/2003 DCS No 048-575-524 .
Sunderland football club fail in training facility bid
•
Enforcement action was taken against buildings at an animal rescue
centre. The structures were regarded as inappropriate and the valuable work
carried out did not amount to very special circumstances. To allow the
proposals would also create pressure for the provision of a security caravan,
see East Dorset 19/05/2003 DCS No 027-513-963 .
•
A development involving a football academy for Chelsea FC was
dismissed; see Spelthorne 09/10/2002 DCS No 035-648-986 , although in
Erewash 13/08/2001 DCS No 042-169-386 an academy for Derby County FC
was allowed because of need, benefits and lack of a suitable alternative site.
•
It was proposed to hold opera performances and other events at a
listed green belt manor house. Some effect on openness was noted from car
parking and temporary structures, but it was considered by the SoS that the
land would be open for most of the year and that the site was only visible from
a limited area. The appeal was allowed as it offered a compelling combination
of cultural, economic and social benefits, see South Oxfordshire 12/02/1997
DCS No 045-845-435 .
Opera performances allowed at a listed green belt manor house
See also Hertsmere 01/03/2012 DCS No 100-076-526 .below under the
heading of ‘Temporary green belt uses’.
Tourism:
A case where the absence of claimed need was pivotal was Wychavon
16/03/2012 DCS No 100-076-629 . Here, permission was sought for a 202
berth canal boat marina basin, an administration and shower block, a service
quay and 101 car parking spaces on green belt land near Worcester. An
inspector did not consider that the marina could be categorised as resulting in
the unrestricted sprawl of Worcester into the surrounding countryside.
However, he considered that it would be a form of encroachment, because it
would introduce buildings and significant engineering operations onto rural
land currently free from development. These would have a considerable
impact on the openness of the green belt. The development was therefore
inappropriate for the purposes of PPG2. The inspector considered that whilst
the appellant’s evidence contained some relevant statistics and general
observations regarding demand in the West Midlands region, it did not
amount to the systematic and rigorous analysis of the factors that would
underpin a cogent case that there was a demonstrable need for a canal
marina of the scale proposed in the Worcester area. He found no harm to the
visual amenities of the green belt or sustainability objectives. He also
recognised the benefits of the proposal in respect of farm diversification, the
local economy, access to the countryside, biodiversity and a small alleviation
in flood risk. Overall, however, he concluded that the key ingredient that was
necessary to tip the balance decisively, need, was missing.
In Oysterfleet Hotel plc v SoS 24/9/2007, the High Court rejected a challenge
to a decision of the SoS to refuse planning permission for a 60-bedroom hotel
in a green belt area. The hotel had been supported by the local authority, but
was called-in. The inspector and the SoS felt that there were no special
circumstances justifying a departure from stringent planning policies. The
court considered that the inspector’s report had been clear and compelling,
and that claims that the “Thames Gateway factor” had not been given
sufficient weight were dismissed. In particular, the inspector had not erred by
describing the 'need' for new hotel accommodation as 'not pressing', so that
the development did not come within the category of 'very special
circumstances' justifying a departure from established green belt policy
against inappropriate development. Need was a variable concept, and could
be preceded by the words ’urgent’, ‘compelling’, ‘overwhelming’ or ‘overriding’.
The word ‘pressing’ to describe ‘need’ would be a perfectly sensible addition
to the list.
Energy:
Para.91 of the NPPF points out that when located in the green belt, elements
of many renewable energy projects will comprise inappropriate development “In such cases developers will need to demonstrate very special
circumstances if projects are to proceed. Such very special circumstances
may include the wider environmental benefits associated with increased
production of energy from renewable sources”. The following are case
examples.
•
In Calderdale 03/04/2012 DCS No 100-076-815 , the erection of a
small wind turbine in the West Yorkshire green belt was approved because it
would contribute 90% of the appellant's energy needs. An inspector accepted
that the development was inappropriate development. However, the loss of
openness would be very limited and its size and visual impact would be
dwarfed by electricity pylons. The landscape was by no means undeveloped,
with buildings and overhead lines including some telecommunication masts.
Moreover, the ability to generate up to 181,000 kWh of electricity per year was
a significant benefit and this would save up to 96 tonnes of carbon dioxide,
assisting in countering climate change. The NPPF placed particular priority on
this issue and these benefits outweighed the inappropriate nature of the
scheme.
•
A wind turbine 71m high was proposed at a green belt farm. An
inspector decided that the scheme would have a very modest impact on the
openness of the area and on the setting of a listed church and conservation
area. Noise levels would fall within nationally agreed limits and as such the
amenity of local residents would not be undermined. The need to reverse the
impact of climate change was also a significant matter that attracted
significant weight. It would assist in diversifying the farm which in turn would
contribute to the local economy, see Newark & Sherwood 09/02/2012 DCS
No 100-076-150 .
•
Five wind turbines were turned down in the Leeds green belt after an
inspector decided that they would be a dominant feature in views from a
village and harm the landscape. It was proposed that the turbines would be
125m high to blade tip. An inspector found that apart from harm to the green
belt and visual amenity there would be a harmful effect on a local community
arising from the proximity and intrusion of the turbines. The appellant argued
that the most important matter was the contribution that the development
would make towards national and local targets for renewable energy capacity.
It was also pointed out that there was very little open land within the
administrative area of Leeds that was not green belt. Furthermore, green belt
designation was not determined by landscape quality. The inspector
reasoned, therefore, that some green belt land could have poor visual
qualities and by the same token some could possess exceptional visual
qualities. He found several factors contributing to the landscape and visual
quality of the area including its open, agricultural character, its woodlands,
landscape designations, an historic hall and registered garden, and the
continuity of the countryside. He opined that the site and its surroundings had
many attributes that lifted it above the merely average and bestowed it with
attributes that could not be applied with equal force to all green belt land. In
view of the particular qualities of the area he found no clear demonstration
that the need to provide energy from wind power was sufficient to amount to
the very special circumstances that would justify allowing the development in
the green belt; see Leeds 15/11/2010 DCS No 100-069-887 . The decision
was quashed by the High Court and remitted to the SoS to be re-determined.
A second inspector decided that the harm to the green belt from such
inappropriate development was outweighed by national and local need for
renewable energy, see Leeds 09/12/2011 DCS No 100-075-180 .
Waste management related benefits:
The following are case examples where waste related proposals have been
allowed in green belts due to the existence of very special circumstances.
•
An energy-from-waste facility was proposed. The SoS considered that
it offered considerable climate change benefits as compared with landfill. It
was agreed that the proposal was inappropriate development. A number of
parties pointed out that the NPPF did not refer to major developed sites in the
green belt. However, the site was situated within the built-up area of an
extensive industrial estate, it had an extant permission for industrial
development and it was very likely that the site would be developed in some
urban form in the future. The site had no direct role in checking unrestricted
sprawl, in preventing the merging of towns or in safeguarding the countryside
from encroachment. It was considered that there would be minimal effect on
the openness of the green belt as the site was clearly within an existing
trading estate and the additional impact was so small. There was a compelling
and urgent need for the facility as proposed and there was no other suitable
alternative site available. If the proposal failed, very substantial amounts of
waste would continue to be landfilled. These considerations were held to
clearly outweigh the potential harm to the green belt, see Worcestershire
19/07/2012 DCS No 100-078-114 .
•
Permission was sought for a waste management facility in the Surrey
green belt, which would process 30,000 tonnes of biodegradable waste per
annum sourced from within the county and neighbouring counties. It would
handle municipal organic waste and biodegradable waste from the
commercial sector. The SoS agreed that the appellants had undertaken a
thorough assessment of alternative sites and, indeed, given the demand it
was probable that more than one facility would be required. Nonetheless, the
scheme did conflict with green belt policy and there were concerns regarding
the impact on an RHS garden from plant pathogens that might be present in
the waste as it was processed. However, he decided that the risk was very
low. In any event, it would not increase the risk present in the existing waste
management system. Given that the site was allocated for a waste
management facility in the development plan and made use of previously
developed land, the SoS decided that these amounted to very special reasons
justifying permission, see Surrey 08/03/2010 DCS No 100-066-712 .
•
In Surrey CC v SoS 17/10/2008 the High Court upheld an appeal
decision to allow a building waste recycling unit; see Surrey 20/04/2007 DCS
No 100-048-447 . The council argued that the development would harm a
green belt area and would add to countryside encroachment. Very special
circumstances did not exist to justify the grant of permission, the council
claimed, and the inspector’s decision had failed to give proper, adequate and
intelligible reasons. However, the court held that the inspector had fully
addressed the environmental impact and did so in language that was ready
understandable. He had demonstrated what his conclusions were and why he
reached them. It was impossible to conclude that the carefully worded
decision was perverse.
Telecommunications need:
A phone mast was proposed on a golf course in a green belt. The monopole
would be constructed of timber and all the ancillary equipment would be sited
alongside it. An inspector recorded that telecommunications masts were not
listed in paras.89 and 90 of the NPPF as being not inappropriate in the green
belt. The council had nevertheless accepted that there was an operational
need for the equipment and had resolved that it was minded to approve the
application, subject to the monopole being redesigned to resemble a tree. The
appellants, however, said that a tree design would be technically unsuitable
and visually more harmful. The inspector found that the harm to the openness
of the green belt would be extremely limited and that the visual impact would
be small. The foreground and backdrop of the structure, when seen from
public viewpoints, would be strongly influenced by stands of mature trees. He
found it difficult to accept that the principal element of the submitted scheme
would be any more harmful in visual terms than one that attempted to
resemble a tree. In his opinion, the artificial nature of a tree-type design would
have the effect of drawing attention to the structure rather than allowing it to
blend in with the landscape. His conclusion on this point was strengthened by
the appearance of a 'tree' mast a short distance away, which projected above
the woodland belt and failed to convince as a natural feature in the landscape.
The inspector concluded that the harm to the green belt would be clearly
outweighed by the need for the development, such as to amount to the very
special circumstances necessary to justify the grant of planning permission,
see Bolton 16/04/2012 DCS No 100-076-857 .
Removal of undesirable existing building or use/regeneration benefits:
A potent very special circumstance applicable to schemes of all sizes is gain
from the removal of an existing offensive or ugly use, as described at 4.1413
and which was the subject of the North case described at 4.2519. The remedy
of contaminated land may be a further gain which may be considered a very
special circumstance, as in the Prospect Park case, see 4.1411. In South
Bucks DC v SoS & Berkeley Homes Ltd 22/6/1998, see 4.2519, it was held
that fall-back may be a very special circumstance in terms of an undesirable
existing use continuing in being only if there was a finding as to the likelihood
or probability of the fall-back position continuing in being. Further cases of
interest follow.
•
A large scale industrial development was proposed in a green belt
area. The application was called in by the SoS. The site covered almost 34ha
of land with the central part containing a car breaker's yard together with other
vehicle dismantlers, small workshops and storage uses. Other parts of the site
were used for the open storage of broken motor vehicles and the applicants
proposed to provide 69,300 sq m of Class B1, B2 and B8 uses. The
applicants and the local authority presented a joint case in favour of the
scheme, arguing that there was a pressing need to create over 10,000 new
job opportunities to 2026 in order to meet the district's identification as a key
employment area. The SoS’s inspector noted that part of the land was
identified as an MDS. However, since the proposed development would
occupy a larger area very special circumstances were required to be proven.
In his opinion, the development would remove a presently untidy and ugly
area of land, improve the visual amenity of the green belt and make a
significant contribution towards the delivery of new employment opportunities.
New footpaths would be created across the site and the council's core
strategy accepted that part of the site should be allocated for employment
purposes, a fact that had been carefully assessed at the time. It would also
reduce the need to make further large scale releases of green belt land. The
proposal was neither premature nor excessive, and the SoS agreed, see
Chelmsford 07/10/2010 DCS No 100-069-372 .
Chelmsford: development would remove a presently untidy and ugly area of
land
•
A replacement farm building was proposed. The appellant claimed the
existing outbuildings were in poor condition and a lean-to structure would be
demolished to enable the erection of the new barn, which would contain
isolation pens, storage areas for feed, fodder, fencing and machinery. An
inspector decided that the barn was reasonably necessary to serve the
agricultural needs of the holding. The existing buildings were already in
productive use and the scheme would result in the removal of an unsightly
structure, enabling a typical agricultural building to be erected in a farm
setting. Consequently, it did not involve an inappropriate form of development
or would set an undesirable precedent, see South Bucks 24/08/2009 DCS No
100-064-053 .
•
A large housing scheme with employment and infrastructure uses was
proposed, together with a rail/bus park-and-ride facility. The sites lay partly
within a green belt and included derelict land formerly part of a Royal
Ordnance factory. It was concluded that the schemes would cause loss of
openness and would not aid urban regeneration, although the park-and-ride
proposal and new railway station were not in themselves inappropriate
development. It was decided overall that green belt policy objections
outweighed the provision of 9.3ha of well-located and accessible employment
land, the bringing back into use and remediation of a derelict site,
improvements to transport infrastructure and the provision of much needed
affordable housing, see South Staffordshire 30/10/2008 DCS No 100-058-471
.
•
Six dwellings were proposed on a site that was occupied by a firm
undertaking specialised work involving the repackaging of plastic materials
and the blending, drying and sieving of polymers. It was argued that the sale
of the site for housing would enable the business to relocate to modern
premises on an industrial estate and away from nearby houses. The SoS
accepted that the development was inappropriate to a green belt and that
there was no need to release further sites for housing development. However,
very special circumstances existed. The proposed development would
increase the openness of the area and the removal of a general industrial use
would significantly enhance the amenity of local residents by removing traffic
movements and reducing noise and fumes. This would be coupled to a
general improvement in the character and appearance of the area, see Vale
Royal 03/02/2005 DCS No 039-138-094 .
•
One dwelling was proposed in a green belt area. It was argued that the
removal of a noisy kennels use was a very special circumstance. An inspector
noted that the use was inappropriate and harmful to the green belt. He felt
that the loss of the activity associated with the kennels was not sufficient a
benefit given that green belt areas were not intended to be devoid of
commercial activity. However, the removal of the noise nuisance was a
compelling benefit. The appeal was allowed; see Hertsmere 09/10/2003 DCS
No 051-790-888 .
•
A new house was proposed on a site used for open commercial
storage. It was argued by the council that there should be a blanket
moratorium on new housing, but an inspector noted that a recent consultation
draft of the structure plan suggested an increase in numbers. The inspector
felt that the prospect of the continued use of the site was a material
consideration, and it was noted that a new house would not materially reduce
the openness of the area, see Three Rivers 28/02/2003 DCS No 037-599-800
.
•
A business park was proposed on the site of a large warehouse type
building surrounded by a concreted area devoted to the stacking and
refurbishment/repair of pallets. An inspector noted that the footprint of the
proposal was more than twice that at present. However the roofs would be
1.5m lower and the developed part of the site would be about half of the
current operational area. In addition there would be no stacking of pallets and
it was likely that the overall level of activity would be less. A less intensive and
extensive development would result which outweighed harm by reason of
inappropriateness; see Brentwood 02/10/2002 DCS No 031-932-358 .
Enabling gain to listed building:
A further very special circumstance which has been used to justify
development in the green belt is the enablement of the refurbishment and
continued maintenance of a listed building.
This was underlined by a Commons statement of 13/3/97 where the Planning
Minister indicated that even in green belt areas the planning system offered
the flexibility to consider alterations and extensions to listed buildings, or
alternative uses that may help to safeguard their future viability. This would
constitute “very special circumstances”. Improvements to the setting of listed
buildings, historic parks and gardens or the character of conservation areas
may also be accorded the status of a very special circumstance. The following
are case examples.
•
Enforcement action was taken against a marquee that had been
erected within the grounds of a C17th listed Hall in a green belt. The appellant
argued that it generated a significant income from its use for holding wedding
functions and other events. He claimed this income would enable him to
refurbish the Hall, which was in need of renovation and repair. This would cost
in excess of £320,000 and could be financed over a five-year period, since
over the past few years the marquee had generated an income in excess of
£1.6m. An inspector decided that the marquee undermined the openness of
the green belt and its appearance was incongruous in the context of the listed
Hall. Enabling the refurbishment of the building was an important
consideration. However, the figures supplied by the appellant were
insufficiently clear to allow him to conclude that retaining the marquee was
appropriate for even the 5-year temporary period sought. The refurbishment
appeared to involve works that might not be necessary, including removing all
the rafters. Moreover, there was scope to maximise the use of other buildings
in the complex. Since the marquee was inappropriate development, and also
undermined the amenity of neighbours who had complained of excessive
noise and disturbance when events were held, the balance lay in upholding
the notice, see Trafford 17/05/2011 DCS No 100-072-285 .
•
It was proposed to convert a large range of redundant agricultural
buildings, which had been listed in 2009 on the basis that they comprised a
model farm dating from the mid-19th century, into 10 dwellings. Some
buildings that had been demolished but whose location could be defined from
historic maps would be reinstated. The appellant argued that there was limited
demand for office use and for light industrial floorspace and a general
industrial use would be unacceptable given the location of nearby residential
properties and the unsuitability of an access road. He also claimed that the
cost of the conversion would be high and given the risks associated with such
schemes a return of only 9% was likely. An inspector agreed that alternative
uses to residential were unlikely to be viable or suitable, discounting a claim
from a third party objector that a combined residential, workshop and storage
use would be financially attractive. The repair and development costs
associated with the appeal scheme had been independently verified by a firm
of chartered surveyors. The inclusion within the scheme of an underground
car park did increase costs but the alternative would require surface level
provision, which would either undermine the openness of the green belt or the
setting of the listed buildings. The inspector decided that the appeal proposal
was preferable. The harm to the green belt from inappropriate new
development to complete former courtyard was outweighed by the need for
enabling development and the benefits to openness and visual amenity, see
Dacorum 24/02/2011 DCS No 100-071-213 .
•
A proposal involved mineral extraction in the Leeds green belt. The
SoS agreed with the inspector that during the extraction period screening
mounds, buildings, security fencing, hard surfacing and roads, use of large
plant and equipment would erode the openness of the green belt. He also
agreed that the short-lived impact on openness would not render the proposal
inappropriate in the green belt, if the scheme were found acceptable in all
other respects. The inspector had found, however, that the proposal for the
main overburden site was troubling for the degree of change to the ground
height and to landform. The SoS agreed that the new landform and profiles
would appear unnatural and would be out of place in the landscape. He was
concerned about the safety implications of introducing heavy lorries and
additional traffic onto an access road. There was nothing in the evidence to
suggest that coal from the site was critical to supply. With respect to a
proposed £1 million funding that would be directed to the restoration of a
listed hall, the SoS agreed that the contribution was not necessary to make
the development acceptable and that improvements to the hall were not a
material benefit of any weight, see Leeds 15/11/2010 DCS No 100-069-854 .
•
A scheme involved the conversion of a listed manor house and barns
in green belt countryside to form five dwellings. The appellants stated that
they had based their calculations on English Heritage guidance Enabling
development and the conservation of significant places. They had allowed for
an 18% profit on the scheme, which required the erection of new houses to
finance the conversion works. The council opposed this element of the
scheme arguing that the impact on the openness of the green belt would be
too great. An inspector noted that the proposal also involved demolishing
buildings of little architectural merit and the fact that such buildings were a
common sight in many rural areas did not mean that they were worthy of
retention. The new dwellings would have a traditional rural appearance and
would sit comfortably alongside the listed manor and its associated buildings,
creating a series of courtyards. In his opinion, if the scale of the new buildings
were reduced, this would result in a scheme that would not be viable, so it
would fail to secure the long term future of the listed buildings. There was no
reason to dispute the financial calculations provided by the appellants and the
profit level was acceptable given the risk involved. Very special circumstances
had been demonstrated to justify the proposal, see Rochdale 03/03/2010
DCS No 100-066-694 .
•
The conversion of a listed building from six apartments to a restaurant
and public house with ancillary manager's accommodation was proposed in a
green belt. An inspector observed that the grade II listed building was
constructed as a domestic loom shop and was a rare example of a vernacular
structure that emerged with the spread of the industrial revolution. The
proposed increase in floor area would be only some 81 sq m, albeit that the
existing extensions would be combined into one new extension. Parking
provision would increase although the site was already screened to some
extent and the proposal would significantly enhance the amount of
landscaping. Moreover, the curtilage of the building would be reduced. The
harm to the green belt would be relatively small. On the other hand, the
conversion, refurbishment, and sensitive extension of the building would
secure the retention of the listed structure in a viable commercial use whilst
introducing public access to it. Reducing the curtilage, demolishing the
disparate outbuildings, and improving the landscape screening would
safeguard the countryside from encroachment and have visual benefit. In
addition, the proposal would generate new employment for up to 20 people,
capturing and retaining economic spend within the borough and providing a
destination adjacent to the existing tourist and leisure attraction of a nearby
reservoir and the surrounding countryside. These amounted to very special
circumstances; see Oldham 11/12/2008 DCS No 100-059-347 .
Oldham: proposal would safeguard the countryside from encroachment
•
It was proposed to build 205 dwellings on land at St Joseph’s College,
near Skelmersdale. Apart from green belt inappropriateness, the SoS
identified serious objections to the scheme in terms of non-conformity with
PPG3 on housing and lack of sustainability. However, it was considered that
the college was an important Grade II listed building in a deteriorating
condition. Architecturally, the college was one of the best examples of a
modern religious institution. The enabling development proposed would
secure its restoration and reuse, and this was a very special circumstance.
The SoS noted that the development contained no affordable housing, but felt
that inclusion would increase the amount of enabling development required,
so would have a greater impact on the openness of the green belt, see West
Lancashire 25/06/2007 DCS No 100-049-284 .
West Lancashire: inclusion of affordable housing would increase the amount
of enabling development required
•
It was proposed to rebuild a green belt house. An inspector felt that
although the increase in floorspace of some 60% was materially larger than
policy prescribed, the fact that the development would be an enhancement to
a conservation area in that it provided enclosure to a village green was
sufficient to overcome the harm that would be caused by inappropriateness,
see Guildford 06/03/2003 DCS No 052-365-317 .
•
A scheme proposed at Trentham Gardens on the south-western edge
of the Potteries conurbation was called-in. The application included a four star
hotel, separate family hotel, sports retail building and "premium brand" nonfood retail units, up to 75 holiday lodges, monkey park, visitor information
centre and outdoor leisure activity areas including fishing, sailing and rowing.
The site covered 285 ha of parkland, much of it included as Grade II* in the
English Heritage register of parks of gardens and containing 20 listed
buildings. The site also fell within the Trentham conservation area and green
belt. The local planning authority, county council and English Heritage broadly
supported the scheme subject to adequate controls through conditions and a
legal agreement. The proposal was however opposed by owners and
developers of town centre schemes who were concerned that the scale and
nature of the retail floorspace would have adverse effects on future
investment and vitality. They claimed that there was insufficient need and little
attempt had been made to examine whether sequentially preferable sites
existed. The SoS accepted that the site had major heritage significance and
was already an established leisure and recreation attraction which was
important to the borough and sub-region. The need to restore the gardens as
a major heritage asset represented a very special circumstance which
outweighed the green belt harm. Significantly it was concluded that there was
no need for the retail elements but decided that it was necessary to facilitate
and enable the restoration of the parkland. There had been a failure to apply
the sequential approach but again this failure was outweighed by the need for
securing the development as a whole. In this context he agreed with his
inspector that the restoration would offer a "blend of historic landscape and
buildings, related commercial and educational features, a range of over-night
and long-stay accommodation, a choice of restaurants, bars and cafes and a
variety of retailing opportunities" which had a degree of synergy and was of a
scale necessary to ensure successful implementation. Improvements to the
public transport accessibility of the site would be secured via a legal
agreement and he accepted the views of English Heritage that the level of
enabling development was satisfactory and would provide for the restoration
of the estate. In granting permission the SoS imposed a series of conditions
limiting the amount of retail floorspace, the size of units and the sale of food
and non-food goods, see Stafford 12/11/2001 DCS No 053-517-745 .
•
A proposal for the conversion and extension of a Grade II* large
country house set in extensive gardens in a green belt and AONB area was
called in by the SoS. The house was included on English Heritage's Buildings
at Risk register and was formerly used as a training centre. Two main
extensions were proposed to provide banqueting facilities and 119 bedrooms
and involved 6,880 sq m of new floorspace. A sec.106 obligation required that
guests would be transported between local railway stations with staff being
encouraged to use non-car means of transport. An inspector concluded that it
provided a proper balance between maintaining the special interest of the
building and the provision of a viable scheme. The SoS disagreed that the
extensions were appropriate in the green belt but very special circumstances
relating to the buildings preservation together with its historic garden
outweighed conflict with PPG2 green belt guidance and PPG13 transport
advice, see Mole Valley 20/7/2000 DCS No 030-669-897 .
•
A residential development was proposed in the grounds of a crumbling
listed building. Here an agreement was offered whereby funds from the new
development would be devoted to repairing the defects in the listed building,
see East Dorset 17/10/1995 DCS No 059-153-675 . NB This case is
described and illustrated at 4.6131 where further enabling gain cases are to
be found including the important Midas judgment.
Planning history and precedent of previous permission:
Another very special circumstance may be the existence of a precedent
planning permission, as demonstrated in R v SoS ex parte Tesco Food Stores
Ltd 30/8/91. Here a Tesco store was refused at appeal by the SoS, after an
inspector’s recommendation to approve the application was rejected. The site
lay in a green belt where substantial development had already been allowed
on an adjoining site. It was argued that the adjacent permission was an
exceptional circumstance, and this was upheld by the court. It was stated that
the SoS had given unreasonably heavy weight to the council’s assertion that
the appeal site contributed to the green belt even though there was no
significant difference in visual impact between the development for which
permission had been granted and the Tesco development. If he had kept in
mind his own declared purposes of green belt policy, he could not have
reasonably have found that the existing permission was not a very special
circumstance.
In Taylor Wimpey (South West Thames) Ltd v SoS 26/10/2011, the High
Court overturned an inspector’s decision to dismiss an appeal for an
additional eleven dwellings on a residential site in a green belt, finding that he
had not taken full account of the site’s planning history, see Elmbridge
07/07/2010 DCS No 100-068-125 . The 4.97 ha site had been acquired by the
Crown during World War II for the construction of a hospital and, although that
was never built, the site was used for government offices for many years.
Taylor Wimpey gained permission for 135 dwellings in 2008 and building work
was well under way. The company argued that its proposed amendment for
seven open market dwellings and four affordable dwellings would improve the
development, for which very special circumstances had already been found to
exist, and that the footprint would be no different from that already approved.
The court ruled that the outcome could have been decisively different had the
inspector taken full account of the site’s planning history and would probably
have been favourable to Taylor Wimpey. As indeed it proved to be, since
following redetermination by a second inspector the appeal was allowed, see
Elmbridge 15/03/2012 DCS No 100-076-461 .
A further case of interest concerned a residential development on the site of a
green belt mushroom farm. An inspector felt the proposal to be inappropriate
development but thought that the planning history of the site was a crucial
consideration. Planning permission had been given for B1 uses on the site
and this had been renewed two years previously. The inspector concluded
that there was a real chance of the site being used for employment purposes
if the present proposal were refused, and reuse rather than redevelopment
was also a possibility that could comply with PPG2 if the requirements at
para.3.8 were met. However, the visual and traffic benefits of the housing
scheme did not amount to very special circumstances warranting the approval
of a scheme that was manifestly inappropriate, see North Somerset
30/12/1998 DCS No 048-472-045 .
In Vallis v SoS19/03/2012, which considered a case involving the conversion
of a 200-year old barn in a green belt and AONB into a dwelling, the High
Court quashed a second inspector’s decision to refuse permission for
unauthorised changes following a permission that had been granted by the
council in 2002; see Aylesbury Vale 01/04/2011 DCS No 100-076-675 . The
court held that the inspector had failed properly to take into account the
preservation of the original internal features that remain in the building as
“heritage assets”. He had also ignored the planning history of the site, by
attaching no weight to it. This included the previous inspector’s conclusion
that the reconstructed barn was “to all intents and purposes, identical to the
building which it replaced and therefore identical to a building that had been
on this site and in this position for 200 years”, see Aylesbury Vale 20/02/2009
DCS No 100-060-567 .
Fall-back position:
An applicant’s fall-back position is often argued as a very special
circumstance, especially in the case of the existence of domestic permitted
development rights in relation to the proposed extension or replacement of an
existing dwelling, as the following cases demonstrate. But in order for such
arguments to succeed, there must be a reasonable prospect that the fall-back
position would be adopted, were permission to be refused.
•
An enforcement notice required the removal of a partially completed
swimming pool complex in a green belt. The works involved the construction
of a single storey building measuring 20m square set almost 4m below ground
and roofed over at garden level to provide a tennis court. The appellant stated
that the building was PD under Class E of Part 1 to Sch.2 of the GPDO 2008
because it was incidental to the enjoyment of his dwellinghouse. Alternatively,
in the event that this argument failed, he claimed that the scheme did not
undermine the openness of the green belt and under Class E he could in any
event erect a swimming pool building within the garden that would have a
much greater impact on the openness of the area. An inspector concluded
that due to the size and nature of the development, it was not reasonably
required as an incidental part of the dwellinghouse. He also rejected the
appellant's claim that an indoor swimming pool fell into the category of
comprising an appropriate recreational or outdoor sporting use within the
green belt. It was an inappropriate form of development, he concluded, which
in the case before him, was outweighed by the very special circumstances
appertaining to the fall-back position. The appellant could exercise his PD
rights by erecting a covered swimming pool and tennis court. The swimming
pool would reduce the openness of the area to a far greater extent. The
appellant had agreed that other permitted development rights under Class E
could be removed by condition and this would ensure that further buildings
within the garden were brought within planning control. The appeal was
allowed, see Dartford 03/07/2012 DCS No 100-077-785 .
•
A two-storey dwelling with garage and stables was proposed to replace
an existing unattractive bungalow with a poor internal layout. The site lay
within a rural scatter of houses, within a green belt. It was found that the
proposal would marginally exceed the permitted 50% increase over the
original, although the council accepted that it would not have disproportionate
effect on openness. An inspector gave weight to the appellant’s fall-back
position, which was that a larger extension could be built using permitted
development rights. The inspector decided that the proposal did not amount to
inappropriate development. The council suggested that the appellants had
failed to submit any evidence to demonstrate that the development would not
exacerbate existing transport problems, so a transport infrastructure
contribution to offset its impact was required. The inspector pointed out,
however, that the design and access statement submitted with the planning
application clearly showed that there would be no increase in floor area of the
replacement dwelling as compared to that which could be achieved were the
appellants to exercise permitted development rights. He concluded that the
transport contribution was unnecessary and failed to meet government policy
tests. This justified an award of costs against the council, see East Dorset
31/05/2011 DCS No 100-072-469 .
•
It was proposed to replace a 'rather forlorn' green belt bungalow with a
new residence that would retain a similar single storey height. However, it
would be a substantial structure with two wings enclosing an open courtyard
built around a sunken patio. This would provide light to an extensive
basement. An inspector asserted that the erection of a replacement dwelling
accommodating roughly five times the floorspace of the original would be
materially larger and inimical to the openness and rural character of the green
belt. He accepted that there might be circumstances where the provision of
basement accommodation would have little effect on openness. However, the
bungalow was remote and, given the proximity of very large dwellings nearby,
he judged that the cumulative impact of the proposal would be to suburbanise
the rural scene. The appellants also claimed that the dwelling would be only
marginally larger than the existing dwelling when extensions, a double garage
and pool house that could be constructed as permitted development and
which benefited from certificates of lawful development were taken into
consideration. However, the inspector opined that this fall-back position might
be unrealistic. The configuration of the bungalow would undermine the utility
of such extensions and he very much doubted that it would be financially
viable, see St Albans 05/08/2010 DCS No 100-068-465 .
St Albans: cumulative impact of the proposal would be to suburbanise the
rural scene
•
A local plan policy allowed for house extensions within the green belt
up to 40% of the original volume of the dwelling as at October 1995. There
was a slight difference between the appellant's and the council's figures but
both said that the proposal for a rear extension would result in an increase of
between 49% and 50.7%. An inspector held that this would be a
disproportionate addition and would therefore constitute inappropriate
development in the green belt. However, he judged that it would increase the
built area by a relatively small amount and noted that it would be screened
from public view. It would have only a minimal effect on openness. The
appellant argued that a fall-back position justified allowing the appeal. This
was an alternative proposal for an extension of around 50 cubic metres at the
rear of the dwelling on the opposite side of the kitchen. This would be larger
than the appeal proposal and would have limited views from the road. The
council acknowledged that it could be built as PD and the appellant suggested
a condition removing rights for any further extensions to the property. The
inspector considered that there was a real and substantial prospect that it
would be built if the appeal were dismissed. He decided that very special
circumstances existed to justify the proposal, see Vale of White Horse
03/08/2010 DCS No 100-068-423 .
Reference should also be made to Cheshire East 22/06/2011 DCS No 100072-811 , discussed above under the heading of ‘Replacement building or
dwelling would be ‘materially larger’?’; to East Dorset 15/02/2012 DCS No
100-075-963 , detailed above in the discussion on disproportionate additions;
and to Vale of White Horse 03/08/2010 DCS No 100-068-423 , which is
discussed above in relation to business need as a very special circumstance.
Personal circumstances:
Only rarely is it the case that personal pleading will be viewed as a very
special circumstance, although this is an issue that arises frequently in
connection with gypsy cases, see 24.5.
A case in point is Doran v SoS 20/07/11, when the Court of Appeal rejected a
claim that an inspector did not properly consider granting a gypsy family a
temporary planning permission for a caravan site in the green belt, in order to
give them somewhere to live until more gypsy and traveller sites became
available elsewhere within the area. The court backed the inspector’s decision
that the family had failed to show the very special circumstances necessary to
outweigh the environmental harm that would be caused by a grant of planning
permission. The Court of Appeal stated that the inspector was entitled, when
exercising his planning judgement, to decide that the serious environmental
objections could only be safeguarded by dismissing the appeal. No error of
law has been demonstrated. Mr Doran had claimed throughout that the
inspector failed properly to take into account the medical and educational
needs of his sons, and the medical needs of his grandparents. However, the
court found that the inspector had considered all the relevant issues including the question of the children’s medical needs and whether to grant
temporary permission - in reaching his decision, see Central Bedfordshire
21/07/2009 DCS No 100-063-537 .
A similar line was taken in Rooney v SoS 27/10/10. Here, an inspector’s
decision to refuse permission for a gypsy caravan site for 4 families on green
belt land - on the grounds that their personal circumstances were not
considered sufficient to outweigh harm to the rural character of area due to
the urbanising effect of structures, and severe harm to green belt due to
inappropriate development, a reduction in openness, encroachment into
countryside and the coalescence of settlements - was supported by the High
Court. It held that inspectors are entitled to reach different conclusions in
broadly similar circumstances. The inspector had not erred in concluding that
there were “material differences” between the case before him and a previous
one elsewhere where he had decided that temporary permission should be
granted, see Runnymede 30/11/2009 DCS No 100-065-675 . The Court of
Appeal upheld the High Court’s judgment on 16/11/2011 and refused leave to
petition the Supreme Court.
A further case of interest is Chelmsford BC v SoS 25/11/2003. Planning
permission had been granted on call-in by the SoS for the retention of a
caravan occupied by a gypsy family. He had concluded that the educational
needs of two children amounted to the very special circumstances justifying
permission in such a sensitive location. The SoS had agreed with one of his
inspector’s that removing the family from the land would severely interfere
with the education of the children and this amounted to a very special
circumstance. In the High Court it was stated that it was impossible to see
“how perfectly ordinary educational needs of two children can be described as
special circumstances let alone very special circumstances.” The judge stated
that he did not mean to belittle the educational needs of the children. However
it was common ground that the very special circumstances that needed to be
proven, did not mean that they were very special in the eyes of the applicant
for planning permission. Every applicant will view his need as being very
special, the judge opined. To allow the permission to stand would create a
precedent, which would entitle other Gypsy families to occupy sites in the
green belt, he added. The permission was quashed However, the courts and inspectors have not always been unpersuaded by
arguments of overriding personal circumstances. In St Albans DC v
Henderson and Another 12/11/04, an appellant had moved onto land within a
green belt in 1971 and started living in a caravan. In 1991 permission was
granted for a cattery and staff accommodation. However, the cattery was not
opened but a bungalow was built. The council took enforcement action
against the bungalow, seeking its removal. The High Court found that the
appellant had recently had a stroke and had nowhere else to live. It also noted
the planning history of the site. In giving approval for the appellant to remain
on the land, the court made it clear that this did not set a precedent for
inappropriate development in such locations.
Reference should also be made to the Doncaster judgment discussed at
4.251. Here, in quashing an inspector’s decision relating to an authorised
gypsy caravan site, see Doncaster 20/07/2001 DCS No 030-755-053 , the
court stated that the educational needs of the family were not unusual and
that concern about precedent was well founded. The rules requiring very
special circumstances to be demonstrated to justify inappropriate
development should not be “watered down” by decision-makers.
Other examples of appeal decisions where personal circumstances were
argued in green belt cases follow.
•
A barn had been converted into a self-contained living unit and was
occupied as a retirement home by the appellant and his wife. A conservatory
had been erected without permission and the appellant wished to retain it, but
with a reduced depth. An inspector decided that it undermined the openness
of the green belt. In examining the personal circumstances of the appellant it
was accepted that an elderly relative was spending time at the property and
the loss of the conservatory would reduce the family's enjoyment of their
property. However, it had not been demonstrated that the conservatory was
essential on health or other grounds; see Lichfield 27/01/2011 DCS No 100070-740 .
•
Permission was sought for extensions at a bungalow in a green belt,
which would involve lengthening its front elevation by around 5m. This would
create a new bedroom and an enlarged bathroom. The appellant explained
that the additional space was required to provide adequate accommodation
for his daughter who had cerebral palsy and needed 24 hour care. He stated
that his wife could only just lift her daughter and in time medical hoists would
be required to lift her in and out of bed and when bathing. The existing
bathroom was very narrow and this would present substantial difficulties. An
inspector disagreed with the council's comments that the works amounted to
more than the minimum necessary to meet the daughter's needs. They would
allow one of her grandparents to sleep overnight, so providing some respite
care. In addition, the daughter would soon need a permanent wheelchair,
requiring more space within the house to enable her to move around.
Adaptations to the property to allow easier access and the storage of
equipment were vital, urgent and essential, the inspector decided. This was of
sufficient weight to overcome the inappropriate nature of the development.
Moreover, the extensions would not materially conflict with the five purposes
of including land within the green belt, see Thurrock 21/01/2010 DCS No 100066-293 .
•
As noted at 4.1758, a couple’s celebrity status was argued in Guildford
21/10/2009 DCS No 100-064-873 as a very special circumstance to justify
the provision of an underground swimming pool at an already extended
dwelling in a green belt. The floorspace of the original dwelling would be
increased by 107%, which an inspector decided would be disproportionate.
Although the proposal would not be discernible from outside the site and only
from close proximity within it, so there would be no harm in terms of loss of
openness and visual amenity, it was still by definition inappropriate
development. The appellants claimed the privacy of their home was
compromised by their celebrity status and referred to a number of incidents
involving press photographers and others. They argued that the proposal
would enable undisturbed use of private facilities that were important to their
health and fitness. The inspector acknowledged that the occupants clearly
suffered some intrusion into their private lives. However, she was not satisfied
that the facilities were essential or that other alternatives had been fully
considered.
•
Enforcement action was taken against a caravan on green belt land
next to a permanent mobile home occupied by the appellant’s father. It was
argued that an onsite presence was required to care for the father who was
elderly and in poor health. An inspector reasoned that the appellant could
provide the care from another location but this would not provide the same
benefits. There were very special circumstances and the appeal was allowed
subjected to the caravan being removed when the father permanently ceased
to reside in the main unit, see Wirral 06/03/2002 DCS No 046-967-174 .
•
A replacement dwelling was requested following a fire and subsequent
demolition on health and safety grounds. The inspector accepted that as
proposed it would represent an inappropriate form of development and this
harm was increased due to a severely substandard access. However the fire
and subsequent demolition together with the personal circumstances of the
appellant outweighed the harm and a refusal of permission would not be a just
outcome. In particular the appellant did not have any alternative
accommodation and was seriously ill with a progressive disease. These
factors also amounted to very special circumstances, see South
Gloucestershire 23/03/2001 DCS No 042-075-924 .
Security considerations:
Security may be a very special circumstance but rarely succeeds in
overcoming green belt policy objections. It is most often argued in connection
with animal rearing enterprises and forms part of the normal testing for
functional need - see 9.334. Cases of interest follow.
•
Enforcement action was taken against a wall, gates and railings at a
dwelling in the metropolitan green belt. An inspector rejected claims that the
works were permitted development. In addition, in her opinion, the
development undermined the openness of the area and did not maintain the
semi-rural character of the locality. The need to secure the appellants' dogs
within the grounds did not amount to a very special circumstance, see Reigate
& Banstead 31/05/2012 DCS No 100-077-527 .
•
The conversion of bull pens at a green belt farm to create 11 dwellings
was rejected because the scheme involved inappropriate development, would
increase the visual impact of the buildings and create a suburban style
housing development. Concern of local residents, who wished to avoid further
vandalism and trespass onto the land, was not a very special circumstance,
see Bromsgrove 09/03/2012 DCS No 100-076-422 .
•
A new oak framed outbuilding for the storage of vintage cars was
proposed. The appellant stated that the building was required to store the cars
in a secure manner given his high profile position in the world of motor racing.
He also claimed that the appeal site had once had a garage upon it, which
was later demolished and no harm to the openness of the area would result.
An inspector decided that the proposed building would be 21m from the house
and, given its siting and size, would not comprise a limited extension to the
dwelling. The personal needs of the appellant did not amount to a very special
circumstance - vintage cars were already stored in a more secure location
nearby, see Surrey Heath 21/08/2008 DCS No 100-057-513 .
•
A house was proposed at a green belt golf course. An inspector
reasoned that the proposal was inappropriate and rejected a security need as
a very special circumstance. It was considered that there was a flat already on
site together with security cameras. An further need for a presence on site
could be met from a house in a nearby village 5 minutes’ drive away, see
South Staffordshire 13/01/2004 DCS No 041-313-095 .
•
Security gatehouses and other measures were required at a green belt
mansion occupied by the ruler of an Arab country. An inspector felt that the
proposals were not appropriate by reason of being an extension or alteration
to a dwelling. In addition openness would be reduced. However, the very
special circumstances of the owner’s security needs were given weight and
the appeal was allowed, see Windsor & Maidenhead 12/07/2003 DCS No
034-449-422 . A similar case was allowed because of the very special security
needs of a foreign royal family, see Runnymede 30/10/2003 DCS No 044164-200 .>
•
A Center Parc type forest holiday village was proposed in a green belt.
The 138ha development comprised 700 villas, 2 large leisure buildings, a 75bed hotel and other ancillary uses. It was agreed, unsurprisingly, that the
development was inappropriate in a green belt area and would harm its
openness. The SoS felt that the nature of the proposed development was not,
in itself, a very special circumstance, and neither was a need for a rural
location. However, in overruling an inspector’s recommendation to refuse
permission, it was considered that the inspector had given insufficient weight
to the potential of the scheme to help create the employment required to
match the levels of housing provision proposed for the area. The SoS also felt
that the economic benefits of the employment on offer would be widespread
and diverse. The SoS also gave more weight to the importance of regional
tourism than did her inspector. In respect of sustainability it was concluded
that although the site was not well located for alternative means of access, the
picture was unclear as to the impact of the proposal on the use of a car. A
travel plan secured by a sec.106 agreement was noted. In conclusion, the
SoS felt that, apart from the green belt policy objection, there were no other
considerations of sufficient weight to justify dismissing the appeal. There were
positive benefits in favour of the scheme including those to tourism, the
economy and employment and ecology/bio-diversity, see Mid-Bedfordshire
05/09/2007 DCS No 100-050-099 .
Integrated sports and leisure complexes
Some such proposals containing a wide range of sport facilities are of subregional significance because of their scale. In such cases, developers are
also usually required to demonstrate that they have attempted to disaggregate
the individual components of the schemes. So, for example the SOS refused
permission following call-in, of an application for an integrated regional sports
and leisure complex on 29.2 ha of land near Leigh, see Wigan 20/08/2001
DCS No 049-209-450 . Known as the Xanadu project, the scheme proposed
an indoor snow centre, an aquatics and junior sports facility, a hotel,
associated commercial leisure uses including cinemas and specialist retail
uses. The total floorspace was approximately 158,100m2 with 1,665 car
parking spaces. The site was located approximately 1 km outside Leigh town
centre on mainly undeveloped countryside adjacent to a country park. In
addition related proposals involved the construction of a new railway station
approximately 3 km to the south of the Xanadu site together with road and
access improvements. The council supported the development on the basis
that proposals for aquatics and rowing facilities were to be provided in the
locality as part of Manchester's unsuccessful bid for the 2000 Olympic
Games. The council argued that it would assist in regenerating a vacant and
largely underused site, creating new employment opportunities and improving
the range of leisure and retail facilities within the region. The SOS agreed with
his inspector that the physical suitability of the site for the Xanadu project had
not been clearly demonstrated owing to the uncertainty about the adequacy of
car parking and possible effects on an underground aquifer. The SOS did not
accept the inspector's conclusion that the proposal would be a highly
damaging feature to the landscape and townscape setting, holding that the
applicants had communicated a clear intention to create an interesting and
well landscaped design. However, it was noted that the site was not well
located relative to the town centre and would attract a substantial number of
single destination trips despite proposals within a green transport plan. The
sequential approach should be applied to the development and this should be
undertaken on the basis of disagreggating the individual components. The
applicants had not demonstrated sufficient flexibility, and the desire to provide
an integrated leisure and retail facility was a very weak argument against
disagreggation. His overall conclusion was that it was not possible in his
opinion for the full environmental effects to be assessed and therefore when
taken in combination with the clear objections to the development, it would be
improper to grant permission. In relation to the new railway station, the SOS
held that there was no certainty that it would provide effective public transport
links for Xanadu and the location of the station had not been assessed
against other alternatives, and he also rejected this proposal.
In Bolton 08/01/2001 DCS No 036-581-352 another scheme involving a
sports “coliseum” and factory outlet centre was also rejected. The application
was recovered for determination following the council's resolution to grant
permission subject to the completion of a legal agreement. The applicants,
Orbit Developments (Manchester) Ltd and Bolton Wanderers Football Club,
proposed the development close to the club's Reebok stadium approximately
7 km to the west of the town centre. Whilst the council continued to support
the application, the Bolton Town Centre Company objected on the grounds
that it did not comply with the sequential approach, there would be adverse
impact upon the town centre, no need existed for leisure development out-ofcentre and it was not sustainable. The leisure use involving participation in a
range of sports such as skiing, snowboarding, surfing, basketball, football,
wall climbing, parachuting, cricket and golf, would be of sub-regional
significance. In the inspector's view the scheme represented a major
expansion of out-of-centre leisure development that was not supported by
regional planning guidance.
This case reinforces the requirement to examine whether it is feasible to
disaggregate elements of a development. The Bolton scheme above was
proposed as a package but this was rejected as being too inflexible and
contrary to the application of the sequential approach. This was reinforced by
the fact that no sequential analysis had been undertaken at the application
stage.
Museum and exhibition uses, while intrinsically culturally and economically
desirable, can give rise to problems relating to residential amenity, traffic
safety and possibly the character of a listed building. Such uses are
sometimes used as a ploy to facilitate a commercial planning applications,
even for amusement centres, see Canterbury 28/02/1983 DCS No 035-719151 . New museums often have the support of local tourist boards or bodies
such as the Museum Council, and can be grant aided from a number of
sources. The level of such support can be an important input as to whether
the need argument has weight in the planning decision making process.
Planning policy, both national and local, relating to the development of
museums and exhibitions is generally supportive to uses basic to the
development of tourism and heritage. The Good Practice Guide on Planning
for Tourism issued in May 2006 states that museums and galleries in
particular lend themselves to urban locations and can bring benefits to such
areas and help to deliver development that is sustainable. Amongst the
particular advantages that they can bring to towns and cities are to be the
focus of regeneration, or help to underpin it; help to increase urban vitality and
support linked trips; be a key ingredient of mixed-use schemes; support
important services and facilities; and facilitate improved access by sustainable
modes of transport. The Good Practice Guide adds that planning authorities
need to ensure that they have assessed the need for these facilities and have
allocated an appropriate range of sites which allow genuine choices to meet
those needs. Similarly, it is for developers and operators to ensure that they
have anticipated what their need for such sites is likely to be and that they
undertake active discussions with local planning authorities about these
requirements.
Equally effective as an argument in favour of the use are circumstances
where a building of some interest, particularly one that is listed, is to be
preserved or kept in some form of use where this otherwise might prove a
problem. National policy states that when determining planning applications,
lpas should take into account the desirability of sustaining and enhancing
heritage assets and putting them to viable uses consistent with their
conservation (NPPF, paragraph 131).
In addition, the sequential test, see 13.132 would come into play where
proposals involve museums or art galleries since they are within the definition
of “Main town centre uses” as set out in Annex 2 to the NPPF. This was
emphasised in Liverpool 29/08/2007 DCS No 100-050-201 where the
conversion of a redundant warehouse to an art gallery and café/bar was
proposed. No information on sequentially preferable sites had been submitted
and accordingly the inspector was concerned that the scale and nature of the
development would divert investment out of the city centre. A more central
location for the development would be more sustainable.