Copas & Anor v Royal Borough Of Windsor & Maidenhead

Under PPG2 paragraph 2.7, an existing Green Belt boundary may be revised only following an approved Structure Plan alteration or where exceptional circumstances necessitate revision. The latter is a single composite test. Circumstances are exceptional for this purpose only where they make revision necessary.

Where a revision would enlarge the Green Belt, necessity requires a later event clearly and permanently to falsify a fundamental assumption that led to the land's original exclusion. A decision refusing particular development proposals on amenity grounds did not meet that standard. The objectives for the use of designated Green Belt land are not material to the prior decision whether to include land within it.

The developers challenged the adoption of a local plan which, for the first time, placed their six-hectare site at Poundfield, Cookham, within the Metropolitan Green Belt. The site had been excluded when the Green Belt boundary was originally fixed.

An Inspector rejected the developers' objection. He treated the Secretary of State's 1991 refusal of planning permission for housing on amenity grounds as an exceptional circumstance necessitating the boundary revision. The developers' application under section 287 of the Town and Country Planning Act 1990 was dismissed by Mr Lockhart-Mummery QC, sitting as a deputy High Court judge, on 31 March 2000.

The appeal concerned the proper application of PPG2 to an enlargement of an existing Green Belt boundary, and whether the earlier planning decision could make that revision necessary.

1. Appeal allowed unanimously. Simon Brown LJ, with whom Longmore LJ and the Master of the Rolls agreed, held that the local plan decision should be quashed insofar as it affected the appellants' land.

2. PPG2 paragraph 2.7 imposed a stringent but composite test. In the absence of an approved Structure Plan alteration, circumstances were not exceptional unless they necessitated revision of the existing Green Belt boundary. The Inspector had addressed that test, so the first ground of challenge failed.

3. The Inspector was nevertheless not entitled to regard the 1991 planning decision as creating the requisite necessity. In a case enlarging a Green Belt, necessity arises only if a later event clearly and permanently falsifies a fundamental assumption on which the land was originally excluded. Only then may continued exclusion properly be treated as an incongruous anomaly.

   The 1991 decision concerned two particular housing schemes. Its amenity objections were neither clearly applicable to every possible development on every part of the site nor sufficiently enduring to establish that the land must permanently remain undeveloped. It also illustrated that ordinary planning controls could protect the identified amenity interests. It could not therefore, by itself, necessitate the boundary revision.

4. The court also held that PPG2 paragraph 1.7 made the land-use objectives in paragraph 1.6 immaterial to the decision whether land should be included in a Green Belt. The Inspector ought not to have relied on access, landscape and agricultural-use objectives. That error would not alone have invalidated the decision because his finding that the land fulfilled a Green Belt purpose would inevitably have remained unchanged. The point was academic because the appeal succeeded on the second ground.

5. The local plan was quashed as it related to the appellants' land. Costs were awarded to the appellants.

• Court of Appeal (Civil Division) — Allowed the appeal in [2001] EWCA Civ 180 and quashed the local plan insofar as it related to the appellants' land.

• High Court — On 31 March 2000, Mr Lockhart-Mummery QC, sitting as a deputy High Court judge, dismissed the developers' application under section 287 of the Town and Country Planning Act 1990.