Appeal Decisions Inquiry held on 5, 6 & 28 January 2011 Site visit made on 6 January 2011 by Ian Currie BA MPhil ARICS MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 29 March 2011

Appeal A – Ref: APP/N0410/X/10/2129621 Fulmer Wood Farm, Fulmer Common Road, Fulmer, , SL3 6AA • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC). • The appeal is made by Mr Peter Jones against the decision of District Council. • The application (Ref:- 09/01343/CLUED), dated 2 October 2009, was refused by notice dated 1 December 2009. • The application was made under section 191(1)(b) of the Town and Country Planning Act 1990 as amended. • The development for which a certificate of lawful use or development is sought is construction of an access road off Fulmer Common Road.

Appeal B – Ref: APP/N0410/X/10/2129715 Fulmer Wood Farm, Fulmer Common Road, Fulmer, Slough, SL3 6AA • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development (LDC). • The appeal is made by Mr Peter Jones against the decision of South Bucks District Council. • The application (Ref:- 10/00363/CLUED), dated 8 March 2010, was refused by notice dated 7 May 2010. • The application was made under section 192(1)(b) of the Town and Country Planning Act 1990 as amended. • The development for which a certificate of lawful use or development is sought is construction of an access road off Fulmer Common Road.

Appeal C – Ref: APP/N0410/A/10/2137404 Fulmer Wood Farm, Fulmer Common Road, Fulmer, Slough, SL3 6AA • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. • The appeal is made by Mr Peter Jones against the decision of South Bucks District Council. • The application (Ref:- 10/00835/FUL), dated 29 May 2010, was refused by notice dated 29 July 2010. • The development proposed is construction of access road from Fulmer Common Road and hardstanding area.

Decision on Appeal A – Ref: APP/N0410/X/10/2129621

1. I dismiss the appeal.

http://www.planning-inspectorate.gov.uk Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

Decision on Appeal B – Ref: APP/N0410/X/10/2129715

2. I dismiss the appeal.

Decision on Appeal C – Ref: APP/N0410/A/10/2137404

3. I dismiss the appeal.

Procedural Matters

4. All of the evidence to the inquiry was given on oath.

The Appeal Site and its Surroundings

5. This part of my decision is largely based on the Statement of Common Ground 1, paragraphs 1.01 to 1.04 inclusive. The property to which these appeals relate is known as Fulmer Wood Estate (‘the Estate’). The appellant purchased the property (previously known as Upton Wood Farm) from the estate of the former owner, Mr Lyons, in January 2009.

6. The estate is bounded by Fulmer Common Road to the north, by Black Park Road to the east, by Rowley Lane to the south and by a track to the west, beyond which are various large properties in institutional or residential use, including the Teikyo Grange and Conference Centre at Fulmer Grange, Place and Oakwood House. The land holding of Rowley Farm, the home farm of the agricultural operations of Messrs J and S Whitby, extends as far west as the east side of Black Park Road.

7. The estate comprises a main dwellinghouse, judging from its general appearance to date from the period between the two World Wars but substantially extended in the post-Second World War era, a courtyard of ancillary outbuildings including some staff accommodation, an estate office, two detached staff cottages adjoining the Black Park Road entrance and an extensive range of farm buildings including a prefabricated barn and timber stalls for the keeping of livestock to the north of the main house and outbuildings. There are paddocks in agricultural use to the north of the farm buildings and yard and a much larger area of farmland is situated in the south east part of the estate, although this was not being actively farmed at the time that the decisions on these appeals were made by the local planning authority. Upton Lake is an ornamental lake/reservoir situated in the central western part of the estate. Most of the rest of the appeal site’s area is woodland. The roadway, which is the subject of these three appeals, and which could be said to extend from the Fulmer Common Road entrance to the estate to the farmyard, will be described in greater detail below.

8. The estate is within the Metropolitan Green Belt lying between the urban areas of Slough to the south, to the north and to the north-west. It also falls within the designated Southern Plateau Area of Attractive Landscape as identified in the South Bucks District Local Plan, adopted in 1999.

Appeal A – Main Issue

9. The two lawful development certificate applications and the decisions that were the subject of the local planning authority’s deliberations were both described as construction of an access road off Fulmer Common Road. However, the plan

1 Document 1 http://www.planning-inspectorate.gov.uk 2 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

that was submitted with lawful development certificate application reference 09/01343/CLUED2 showed an access onto Fulmer Common Road and a roadway extending to the south of that access for a distance of some 390m to a point to the north of the north shore of Upton Lake as described in paragraph 7 above. The certificate application does not include the walls and gates erected and installed at the Fulmer Common Road entrance. Therefore, I consider that the main issue in this appeal is whether the decision of the local planning authority, to refuse the lawful development certificate for the formation of an access onto Fulmer Common Road and the laying out of a roadway to the south of that access, was well-founded.

Appeal A – Reasons

10. In this appeal, the onus is on the appellant to demonstrate, on the balance of probabilities, that the works, shown on Plan F were lawful at the time that the application for the lawful development certificate was made. In the grounds of appeal submitted by the appellant on 28 May 2010, it was asserted that the relevant engineering works, namely an access road from Fulmer Common Road, were substantially completed more than four years before the date of the application. The application was dated 2 October 2009. A letter was sent by the local planning authority to the appellant about a newly finished roadway in June 2009 3. Clearly, these works were carried out well within a four year period of the application for the lawful development certificate and an appeal made on this basis would be bound to fail.

11. However, by the time of the inquiry the appellant’s position had understandably changed and the arguments now hinged on the provisions of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) as amended. It must not be overlooked that there are two elements of the development at issue, the formation of an access to a highway and the laying out of a road. Fulmer Common Road is not a classified road and Class B of Part 2 to Schedule 2 to the GPDO makes clear that planning permission is not required for the formation, laying out and construction of a means of access to a highway, which is not a trunk road or a classified road, where that access is required in connection with development permitted by any class in this Schedule (other than by Class A of this Part which relates to gates, walls etc which are not part of this appeal). Therefore, any alterations to the access onto this unclassified road would not require planning permission if required in connection with another Part of Schedule 2.

12. The part of the Schedule relied on by the appellant, in this context, is Part 9, “Repairs to Unadopted Streets and Private Ways”. It is short but important to the outcome of this appeal and is therefore reproduced in full. It says “Class A – Permitted Development – A. The carrying out on land, within the boundaries of an unadopted street or private way, of works required for the maintenance or improvements of the street or way.” An interpretation of Class A is set out at paragraph A.1. This says, “For the purposes of Class A, ‘unadopted street’ means a street not being a highway maintainable at the public expense within the meaning of the Highways Act 1980.”

13. Although Part 9 is short, whether or not this section of the roadway falls inside the permitted development limits granted by Part 9 can be broken down into the determining factors identified by the legislation; these are the nature of the

2 Plan F 3 Document 15 http://www.planning-inspectorate.gov.uk 3 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

pre-existing way, what were its boundaries and the extent of the works that were carried out by the appellant to determine whether they fell within the term ‘required for maintenance or improvement’.

14. On the first point, there seems to be little doubt that historically a track ran south from the point of the present gates onto Fulmer Common Road to a point to the north of Upton Lake. Such a track can be seen on the historic Ordnance Survey Map of 1926 4, the more recent surveys of 1960-15, 1970-26 and 1974- 87 and on the base map to the South Bucks District Local Plan Proposals Map, adopted in 1999 8. The original field gate may have been out of use for several years and was covered by rhododendrons. However, there is little doubt that it is a longstanding private right of way which was never abandoned as such. The mere clearance of the private way and the reopening of the gateway onto Fulmer Common Road did not involve any development let alone any that might be permitted by Part 9. Overall, I am satisfied that the stretch of roadway that is the subject of this appeal is a private way for the purposes of this part of Schedule 2 of the GPDO, originating in a period well before the appointed day for the Town and Country Planning Act 1947, 1 July 1948. The questions therefore remain, were the works carried out by the appellant within the boundaries of the private way and were they in the nature of maintenance or improvement?

15. To my mind it is difficult to separate these two matters out. Changes in the boundaries of the private way stem to a considerable degree from the changes to the character of the private way from a fairly rough track, subject to limited upkeep in recent times, to a roadway of uniform width with a smooth hard surface. Was that change of character within the general area of maintenance or improvement or was it something more drastic? On that basis it is probably most helpful, in reaching a conclusion on this appeal, to look at these two issues in the round.

16. Firstly, it seems to be the case that the width of culverts over drainage ditches at periodic intervals along the length of the track has been essentially unaltered. Whether the boundaries of the track as a whole have been materially altered is more difficult to determine, mainly because measurements, taken before the track was improved, relate to a roadway that had been poorly maintained over a long preceding period. However, as a matter of record the appellant found that the top surface of the private way, at a time after his purchase of the site but before the present surface was put down, was between 3.65m to 4m. The width of the track was said to be mainly 4m, the 3.65m width being largely confined to the opening of the timber five- bar gate in place when he acquired the site 9. Mr Wooldridge, his contractor, said that the hardened surface was as little as 3.3m wide in places but 90% enjoyed a width of some 4m 10 .

17. What is now in place is undoubtedly of much more uniform width, resulting from its mechanical construction using a roller 4m wide. Measurements carried out at the site visit 11 indicate that the metalled section of the roadway is

4 Plan E1 5 Plan E2 6 Plan E3 7 Plan E4 8 Plans D(1-2) 9 Document 11 paragraph 13(p)(i) 10 Document 11 paragraph 13(p)(ii) 11 Document 3 http://www.planning-inspectorate.gov.uk 4 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

consistently 4.2m wide resulting from the extra width of hard surface being extruded on each side of the 4m roller passing over it. I have no reason to doubt that this operation took place along the line of the pre-existing track. Whether it can be said to have been within the boundaries of the pre-existing right of way is debatable, especially given the fact that both the previous track and its successor abut woodland on both sides and boundary reference points, such as kerbstones, are absent. On the balance of probabilities, the present private way is slightly wider than its predecessor. Whether that increase in width takes it outside the permitted development rights granted by Part 9 of Schedule 2 to the GPDO also depends on whether the laying out of the new roadway amounted merely to maintenance or improvement of the private way or to something more fundamental.

18. Both main parties agreed that the leading case on this matter was the decision of the Court of Appeal in Cowen v Secretary of State for the Environment & Another 12 . All three Lord Justices agreed that an Inspector had wrongly confused the provisions of Part 6 of Schedule 2 to the GPDO with Part 9 concerning alterations to a pre-existing track on agricultural land but their reasoning on this particular point was subject to different emphases. Of these I prefer the judgement of Lord Justice Sedley, as I find that this sits most comfortably with the particular circumstances I found on the site, although disassociating myself from his observations on environmental amenity, which is not a matter before me in a lawful development certificate appeal.

19. At page 6 of the judgement he said, “It will now be for the Secretary of State to decide, without reliance on Part 6, whether the work falls outside Part 9. It will do so if, notwithstanding that improvement may well involve alteration, the alteration was such as to change the character of the way. He will not be constrained by any prescriptive description of the character of the way; this too will be for him to gauge as a planning expert …” .

20. Applying the test of whether improvement involved alteration such as to change the character of the way, the starting point has to be the character of the pre-existing track. It was described by Mr Wooldridge, in paragraph 3 of his statement 13 , as being made up of two component parts, namely a base core comprising a mix of hardcore gravel and hoggin on top of which was a black top surface. The road had deteriorated and was in need of repair. At paragraph 6 Mr Wooldridge describes the work he then carried out as “the repair and relaying of the road.” This involved stripping off the previous top surface, laying a base core and resurfacing the existing road.

21. At paragraph 8 of his statement Mr Wooldridge said that a hard tarmac base is essential and must be provided to accommodate the scale and type of vehicles likely to use the road. He went on to say, at paragraph 9 of his statement, that a road without a tarmac base is unsuitable and impractical for such vehicles and will result in rapid deterioration of the surface and structural damage as well as damage to drainage, services etc. Applying my planning expertise to this situation, as required by Lord Justice Sedley in Cowen as cited in paragraph 19 above, I conclude that, as a matter of fact and degree, this quantum of works to the pre-existing track constituted less a function of maintenance and improvement of the private way, more a total reconstruction that changed its character. This takes the development outside the scope of

12 (2000) 79 P&CR 457 (Document 21) 13 Document 6 http://www.planning-inspectorate.gov.uk 5 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

Part 9 to such an extent that planning permission is required for the rebuilt roadway. Accordingly, I find that the local planning authority’s decision to refuse a lawful development certificate was well-founded, a certificate will not be granted and, as a result, Appeal A fails.

Appeal B – Main Issue

22. Following on from my identification of the extent of Appeal A in paragraph 9, the extent of the lawful development certificate in paragraph 9 needs to be determined as both certificates claim to constitute the construction of an access road off Fulmer Common Road. It would seem to be agreed between the parties that Appeal B relates to the roadway in its entirety from Fulmer Common Road at least as far as the area of hardstanding in the north-east corner of the agricultural paddocks to the north of the farmyard. As a result, Appeal B includes all of the Appeal A certificate roadway and the access but again not the Fulmer Common Road entrance gates and adjoining walling.

23. It also includes the length of roadway extending eastwards from a sharp right angled bend and crossing the full width of the agricultural paddocks to recently formed hardstanding in their north-eastern corner. A similar roadway sweeps south as a continuation of this roadway into the north-western corner of the farmyard. The appellants’ representatives indicate that this stretch of roadway was not included in either application for a lawful development certificate, even though a plan was submitted with the Appeal B application with the roadway edged red in its entirety 14 . In these circumstances, it is my opinion that the extent of the lawful development applied for has to be determined by the appellant’s representatives’ line of reasoning, as the burden of proof is upon the appellant to demonstrate the lawfulness sought on the balance of probabilities. Therefore, I consider that the main issue in this appeal is whether the decision of the local planning authority, to refuse the lawful development certificate for the formation of an access onto Fulmer Common Road and the laying out of a roadway extending as far as, and including, the hardstanding in the north-east corner of the agricultural paddocks, was well- founded.

Appeal B – Reasons

24. The arguments on this appeal were essentially around Part 6 of Schedule 2 to the GPDO. The same considerations apply to the access point as in Appeal A as amplified in paragraph 11 above. If the rest of the access road is permitted development, any alterations to the access onto the unclassified Fulmer Common Road are also permitted development under the terms of Class B of Part 2 of Schedule 2. The local planning authority also argued that the appropriate Class of Part 6 to analyse this development was Class A, on the basis that the farmland was wholly dependent on the agricultural facilities at Rowley Farm. I am satisfied that Rowley Farm is a separate unit of occupation from any farmland on the appeal site, which is clearly within the planning unit of Fulmer Wood Estate. At the time that the application was lodged, this was the only farmland within that planning unit, it had an area significantly less than 5 hectares but significantly greater than 0.4 hectares and, as a result, any permitted development rights attached to this land that may be given for agricultural development by Part 6 of Schedule 2 to the GPDO are granted by Class B rather than Class A.

14 Plan B http://www.planning-inspectorate.gov.uk 6 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

25. Class B says that the carrying out on agricultural land comprised in an agricultural unit of not less than 0.4 but less than 5 hectares in area of development consisting of, amongst other things, (d) the provision, re- arrangement or replacement of a private way, and (e) the provision of a hard surface, where the development is reasonably necessary for the purposes of agriculture within the unit, will constitute permitted development that does not require planning permission. Paragraph B.1 goes on to say that such development is not permitted if, amongst other things, the external appearance of the premises would be materially affected.

26. At paragraph 37 of his submissions 15 , Counsel for the appellant said that the relevant development in this case is the extension of the private way across the paddock together with the hard standing. Taking that into account, the stretch of private way leading from the Appeal A road way to the west side of the agricultural paddocks is subject to the same considerations as Appeal A; it is a longstanding private way used for mixed estate management purposes, not solely or even primarily for agriculture, and it has been reconstructed to a high specification as a hard-surfaced multi-purpose roadway. This section of the roadway through the estate is therefore subject to the same considerations as Appeal A, i.e. under the provisions of Part 9 of Schedule 2 to the GPDO, and its lawfulness should therefore fail for the same reasons. Indeed, it may be argued that it is in part significantly wider than its antecedent where a passing place has been installed immediately to the east of the right angled bend where it joins the north-south leg leading to the Fulmer Common Road access.

27. In contrast, I can see no reason why planning permission is required for the hardstanding area. It provides a reasonable agricultural function for the storage of material or the loading, unloading and turning of vehicles and, in my opinion, does not materially affect the external appearance of the Fulmer Common Estate. This leaves the roadway across the paddocks. It is agreed that, unlike the stretch of road to its west, this has no prior antecedents. It was at best a rutted routeway created by farm traffic, but it could not have been described as a private way for the purposes of Part 9. On the other hand, it is difficult to make out a case for a high specification fenced-off made up road bisecting what was formerly a single field being considered reasonably necessary for agriculture. I appreciate that the threshold for reasonable necessity is low, being little more than the presence of an existing agricultural use 16 . However, it seems to me that the formation of a hardsurfaced roadway, carving up a small isolated patch of farmland and resulting in the loss of productive land cannot be described as promoting agriculture without the need for planning permission. I fully understand the requirement to provide a track which would preclude tension between movement of farm machinery and domestic use of the main house; indeed, this is discussed more fully at paragraph 34 below. However, in my professional opinion, avoidance of this conflict cannot give rise to a situation where the laying out of a hardsurfaced track almost half a mile long would not need planning permission. In my planning judgement, this significant quantum of engineering work could not be argued as being reasonably necessary for the purposes of agriculture simply to reduce the risk of accidents between farm vehicles and pedestrians in the vicinity of the main dwelling. Therefore, I conclude that this condition of Class B of Part 6 of Schedule 2 to the GPDO is not satisfied. The Council’s refusal of the lawful development certificate overall was well founded and Appeal B fails.

15 Document 11 16 See EPL Vol 6 para 3B-2103 http://www.planning-inspectorate.gov.uk 7 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

Appeal C – Main Issues

28. Since I reach the conclusion that both appeals against the refusals of lawful development certificates should fail, the section 78 appeal against the refusal of planning permission falls to be determined. As with Appeal B, there was some uncertainty whether this section 78 appeal included the stretch of roadway linking the eastern end of the agricultural paddocks to the north end of the farmyard. Again, the appellants contended that it was not part of the planning application. On the contrary, the local planning authority asserted that as, once more, a red line had been drawn around the full extent of the roadway on the application plan 17 , this further hard surfaced area was also the subject of the planning application. Because of this area of doubt, both scenarios will be taken into account in my reasoning on this appeal.

29. As a consequence, I consider that the main issues in this appeal are firstly whether the construction of an access road from Fulmer Common Road and the formation of a hardstanding on agricultural land constitute appropriate development within the Metropolitan Green Belt, secondly the visual impact of the access road and hardstanding upon the Southern Plateau Area of Attractive Landscape and, lastly, if the development is inappropriate to the Green Belt, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development.

Appeal C – Reasons Appropriate development in green belt

30. The site lies within the Metropolitan Green Belt. Paragraph 3.12 of PPG2, “Green Belts”, issued in January 1995, says that the statutory definition of development includes engineering and other operations… The carrying out of such operations … [is] inappropriate development unless [it] maintain[s] openness and [does] not conflict with the purposes of including land in the Green Belt.

31. The purposes of including land in the Green Belt are set out in paragraph 1.5 of the PPG. The five purposes are said to be to check unrestricted sprawl of large built-up areas, to prevent neighbouring towns from merging into one another, to assist in safeguarding the countryside from encroachment, to preserve the setting and special character of historic towns and to assist in urban regeneration by encouraging the recycling of derelict and other urban land.

32. Looking at these five purposes, I do not consider that the there was any serious indication that the new hardsurfacing undermined prospects of regeneration in nearby towns or of harming the rural setting of an historic settlement. Being well-removed from any substantial body of population, I do not see any serious argument that the access gives rise to outward expansion of an existing large urban area. However, this newly-created hard surface could be said to add to urban encroachment in the countryside and to undermine the effectiveness of this part of the Metropolitan Green Belt in preventing the urban areas of Slough, Gerrards Cross and Beaconsfield from merging, at the same time thereby detracting from openness. In those respects, the development, the subject of the section 78 appeal can be said to constitute inappropriate development in the green belt, which is, by definition, harmful to the Metropolitan Green Belt.

17 Plan C http://www.planning-inspectorate.gov.uk 8 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

33. Paragraph 1.6 of PPG2 says that once Green Belts have been defined, the use of land in them has a positive role to play in fulfilling a number of objectives. One of these is said to be to retain land in agricultural, forestry and related uses. The area of agricultural land served by the access, amounting to some 2.22 hectares, has long been farmed by Mr Whitby’s company operating out of Rowley Farm to the east of Black Park Road. Traditionally, under the ownership of the late Mr Lyons, the land was stocked with animals and farmed by plant and machinery brought in through the Black Park Road entrance, past the main house and ancillary accommodation, through the then Upton Common Farm farmyard and into this area of landlocked farmland.

34. Understandably, the present owner does not want movement of large agricultural machinery and equipment passing through an area of his estate where his large family of small children can otherwise play and roam in comparative freedom close to the house without fear of conflict with a significant volume of movement of farm traffic, with a real risk of safety issues arising. In these circumstances, the appellant would be prepared to see this area of traditional farming activity go out of agricultural use, which could be said to be contrary to the advice in PPG2 set out in the preceding paragraph.

35. However, I am firmly of the opinion that loss of the relatively small area of 2.22 hectares 18 of farmland is not, in itself, sufficient to justify the provision of a stretch of hardsurfaced roadway some 790m long 19 , even if it may be said to be provided primarily for agriculture purposes. Even if some of the land given over to agricultural production on this estate were lost (a much larger area accessed from Black Park Road without the need for agricultural machinery and livestock movements encroaching onto the dwellinghouse’s immediate surroundings would survive) this would not, in my professional opinion, substantiate the necessity to retain an area and especially length of hardsurfacing solely to keep this isolated tract of land in farm use. Very special circumstances would need to be shown to overcome the harm caused to green belt openness by the inappropriate development of the roadway and this is discussed below. Southern Plateau Area of Attractive Landscape

36. The appeal site lies within the Southern Plateau Area of Attractive Landscape (AAL). ‘Saved’ Policy L2 of the South Bucks District Local Plan 1999 says that in determining applications for development within or adjacent to an AAL, special attention will be paid to the likely impact that the proposed development will have on the conservation and enhancement of the natural beauty and wildlife interests of the AAL. Development will not be permitted within an AAL where there would be an adverse impact on the special character, landscape or amenity of the area.

37. The roadway lies within a secluded part of the estate. The appellant has not objected to the imposition of a condition suggested by the Council requiring the subsequent approval of materials on the top surface of the roadway 20 . In my professional judgement, using a gravel finish, similar to that employed in the paved areas to the south of the main house on the estate would not look out of place in the AAL. Some trees may have been removed during the construction of the present roadway but this may owe more to sensible forestry

18 Document 10 page 41 19 Document 13 paragraph 1.2 20 Document 2 Condition 2 http://www.planning-inspectorate.gov.uk 9 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

management rather than wilful destruction of tree cover. In any event, trees have been planted elsewhere alongside the roadway equivalent in number to those removed at its northern end. Overall, I conclude that the visual impact of the roadway upon the AAL need be no more than neutral, if finished off in a suitable surface, and would, in those circumstances, contribute no additional harm over and above that identified in paragraphs 30 to 35 inclusive above. Very special circumstances

38. There are essentially two arguments put forward under this heading that have not already been aired. The first is that the pre-existing track, as laid out and operated by the previous owner, could have been used for the same purposes as now. i.e. for farming the land served by the private way and for sound estate management, and that is all that is being sought now, albeit with a hard surface. I have no difficulty with that concept. If the pre-existing track were put back to something like its previous condition and the end product were capable of use by farm vehicles, agricultural plant and equipment and for the efficient management of the estate, then there would not appear to be any development involved for which planning permission was required. That seems to me to be a sound reason for withholding permission for the present hardsurfaced roadway and other hard surfaces that constitute inappropriate development in the Metropolitan Green Belt for the reasons set out in the paragraphs under that heading.

39. The second set of arguments advanced on behalf of the appellant seems to me to have rather more substance. The hardsurfaced road in its entirety provides an all-weather surface from Fulmer Common Road to the former Upton Common Farm farmyard with its under-used or unused barns, animal houses and pens. This road could be used to serve the farm yard without giving rise to any conflict between agricultural traffic movements and domestic arrangements in and around the main house. I find it particularly unfortunate that this large agricultural facility stands empty while the stock overwintering in the congested buildings at Rowley Farm immediately to the east would, it seems to me, benefit from living in the less cramped premises afforded by this empty farmyard close by. The unlocking of this untapped agricultural resource could be regarded as promoting a green belt facility, as envisaged by paragraph 1.6 of PPG2, by fulfilling the objective of maximising farming potential within the Green Belt.

40. I have thought very hard about this but have reluctantly been forced to the same conclusions as the local planning authority’s advocate in his closing submissions 21 ; the fact that there have been nothing more than discussions about the use of these buildings for agriculture amounts to a material consideration with very little weight, still less a very special circumstance, that outweighs the harm to Green Belt openness arising from the inappropriate development, which is brought about by the entire length of the hardsurfaced road. As a consequence, I conclude that there are no very special circumstances, either individually or cumulatively, that clearly outweigh harm caused to the Metropolitan Green Belt by this development. Therefore, the section 78 appeal fails.

21 Document 13 paragraph 4.13 http://www.planning-inspectorate.gov.uk 10 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

Conclusions

41. For the reasons given above, I conclude that the Council’s refusals to grant two certificates of lawful use or development, in respect of construction of parts of an access road off Fulmer Common Road on the Fulmer Common Estate, Fulmer, near Slough, were well-founded and that the appeals should fail. Accordingly, I shall exercise the powers transferred to me in section 195(3) of the 1990 Act as amended, with regard to these two appeals. Similarly, also for the reasons given above, I conclude that the section 78 appeal should be dismissed.

Ian Currie

Inspector

http://www.planning-inspectorate.gov.uk 11 Appeal Decisions APP/N0410/X/10/2129621, APP/N0410/X/10/2129715, APP/N0410/A/10/2137404

APPEARANCES

FOR THE APPELLANT:

Mr Robin Purchas QC instructed by Mr Paul Dickinson of Paul Dickinson & Associates. He called:- Mr Peter Jones The appellant. Mr Graham Wooldridge Director, The Wooldridge Group, Building Contractors, Bagshot, Surrey. Mr Stephen Whitby Messrs J & S Whitby, Farmers, Rowley Farm, Black Park Road, Wexham, Slough, Bucks. Mr Paul Dickinson BA Principal, Paul Dickinson & Associates, Town Planning MRTPI FLandInst MCMI & Development Consultants, Lower Froyle, Bentley, Hants.

FOR THE LOCAL PLANNING AUTHORITY:

Mr Richard Ground of Counsel, instructed by the Head of Democratic & Legal Services, South Buckinghamshire DC. He called:- Mrs Margaret Smith BA Principal Planning Officer, Development Control Unit, MRTPI South Buckinghamshire District Council.

DOCUMENTS 1 Statement of Common Ground. 2 Conditions suggested by the local planning authority as being appropriate in the event of the section 78 appeal being allowed. 3 Measurements taken by the main parties of the roadway on the Fulmer Wood Estate during the site visit held on 6 January 2011. 4 Propositions of law made by Mr Purchase in opening on behalf of the appellant. 5 Proof of evidence of Mr Jones. 6 Proof of evidence of Mr Wooldridge. 7 Proof of evidence of Mr Whitby. 8 Proof of evidence of Mr Dickinson. 9 Summary proof of evidence of Mr Dickinson. 10 Appendices to proof of evidence of Mr Dickinson. 11 Closing submissions made by Mr Purchase on behalf of the appellant. 12 Proof of evidence of Mrs Smith and appendices. 13 Closing submissions made by Mr Ground on behalf of the local planning authority. 14 Extract from notes of his cross-examination of Mr Dickinson, submitted by Mr Ground. 15 Letter dated 17 June 2009 from the Director of Services, South Buckinghamshire DC to the appellant concerning the creation of a path on the appeal site. 16 E-mail dated 26 November 2009 from Cllr Ian Trott, Fulmer Parish Council to Bradley Gammond of the local planning authority concerning the formation of new access onto Fulmer Common Road from the appeal site. 17 Extract from the Concise Oxford English Dictionary, Ninth Edition, on the entry for the word ‘premise’. 18 Garland v Minister of Housing & Local Government and Another (1968) 20 P&CR 93. 19 Whitley & Sons v Secretary of State for Wales & Clwyd County Council (1992) 64 P&CR 296.

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DOCUMENTS (Continued) 20 Brentwood Borough Council v Secretary of State for the Environment & Gray (1996) 72 P&CR 61. 21 Cowen v Secretary of State for the Environment & Another (2000) 79 P&CR 457. 22 Taylor & Sons (Farms) Ltd v Secretary of State for the Environment, Transport & the Regions [2001] EWCA Civ 1254. 23 R (oao the Heath & Hampstead Society) v Vlachos & others [2008] EWCA Civ 193. 24 R (oao Wychavon DC) v Secretary of State for Communities & Local Government [2008] EWCA Civ 692. 25 Barnett v Secretary of State for Communities & Local Government [2009] EWCA Civ 476. 26 Rastrum Ltd, RA Benge v Secretary of State for Communities & Local Government & another [2009] EWCA Civ 1340. 27 Feather v Cheshire East Borough Council [2010] EWHC 1420 (Admin). 28 Murrell & Murrell v Secretary of State for Communities & Local Government & Broadland DC [2010] EWCA Civ 1367.

PLANS A Plan number 051209/rd submitted with all three appeals. B Plan number 051209/rd stamped 12 March 2010, the subject of local planning authority decisions. C Plan number 051209/rd stamped 3 June 2010, the subject of a local planning authority decision. D(1-2) Extracts from the adopted South Bucks District Local Plan Proposals Map for the appeal site and its surroundings. E Ordnance Survey extracts for the appeal site and its surroundings dated 1926, 1960-1, 1970-2 and 1974-8 respectively, submitted by Mr Dickinson. F Plan that was attached to the lawful development certificate application, the subject of appeal reference APP/N0410/X/10/2129621.

ADDITIONAL PHOTOGRAPHS PRODUCED AT INQUIRY 1 Bundle of four clearer photographs of the original entrance to the appeal site from Fulmer Common Road. 2 Photograph of actual locations of where local objectors suggested the access onto Fulmer Common Road had been formed, submitted by Mr Dickinson. 3 Google Earth aerial photograph of the appeal site and adjoining land, submitted by Mr Dickinson.

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