Town and country planning – Planning permission – National Planning Policy Framework – Claimant local authority refusing interested party planning permission for change of use in green belt and issuing enforcement notices – Inspector appointed by defendant secretary of state allowing appeal and quashing enforcement notices – Claimant appealing under sections 288 and 289 of Town and Country Planning Act 1990 – Whether inspector erring in interpretation of NPPF – Whether substantial weight to be given to harm to green belt – Whether planning balance to be approached in two stages – Appeals dismissed
The interested party was a traveller who applied to the claimant local planning authority for planning permission to change the use of land in the green belt, from a pony paddock to a site for six traveller pitches, for himself and his family.
Paragraph 143 of the NPPF stated that inappropriate development was by definition harmful to the green belt and should not be approved except in very special circumstances. Paragraph 144 stated that, when considering any planning application, local planning authorities should ensure that substantial weight was given to any harm to the green belt and very special circumstances would not exist unless the potential harm to the green belt was clearly outweighed by other considerations.
The claimant refused that application on the grounds that the proposed development was inappropriate development in the green belt; there was further harm by reason of a loss of openness and encroachment in the countryside; and there were no very special circumstances clearly outweighing that harm.
However, the interested party created an area of hardstanding on the site and positioned a number of caravans thereon and the claimant issued enforcement notices. An inspector appointed by the defendant secretary of state allowed the interested party’s conjoined appeals against those notices and the refusal of planning permission.
The claimant appealed pursuant to section 288 of the Town and Country Planning Act 1990 against the grant of planning permission and pursuant to section 289 against the quashing of the enforcement notices. The claimant contended that the inspector had erred in law in failing properly to interpret and apply paras 143 and 144 of the NPPF.
Held: The appeals were dismissed.
(1) The claimant’s interpretation of para 144 failed to take proper account of the nature and purpose of the NPPF and of para 144 in particular. The NPPF was not a statute to be construed as such, rather it was guidance to decision makers and para 144 was giving guidance as to how a particular exercise of planning judgment should be approached. Those making planning decisions had to apply the NPPF and interpret it correctly but the nature of the decision-making process was also relevant as to how the policy was to be interpreted, having regard to the persons by whom and in what setting the policy was to be applied: East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 893; [2017] PLSCS 144; [2018] PTSR 88 applied.
The claimant’s approach to the interpretation of para 144 was vitiated by an excessively forensic analysis and by a failure to read that paragraph in the light of para 143 which set out the proposition that inappropriate development was by definition harmful to the green belt and the requirement that such development should not be approved unless there were very special circumstances. The second sentence of para 144 was in terms setting out the only situation in which it would be appropriate to find that there were very special circumstances. It was clearly intended as an elucidation and development of para 143. The first sentence of para 144 was to be read in the light of the paragraph which preceded it and the sentence in the same paragraph which followed it. That first sentence was not setting out a new requirement separate from para 143 but was part and parcel of the elucidation of para 143 which para 144 was intended to provide.
(2) The claimant’s argument was also flawed by taking metaphorical language unduly literally. The reference to “substantial weight” being given to harm was ultimately a metaphor as was the reference to the harm being “clearly outweighed” by other considerations. The exercise to be undertaken was not one of balancing weights on scales. Rather the language of weight and weighing was being used to emphasise the importance of the green belt. It was used to make it clear to decision makers that they could not approve inappropriate development in the green belt unless the considerations in favour of the development were such as truly constituted very special circumstances so that the development could be permitted notwithstanding the importance given to the green belt. The claimant envisaged the balancing exercise being quasi-mathematical but if that was the appropriate exercise then para 144 failed to provide the decision maker with guidance as to the values to be placed in the necessary mathematical calculations.
(3) When paras 143 and 144 were read together they could be seen as explaining that very special circumstances were needed before inappropriate development in the green belt could be permitted. In setting out that explanation they emphasised the seriousness of harm to the green belt in order to ensure that the decision maker understood and had in mind the nature of the very special circumstances requirement. They required the decision maker to have real regard to the importance of the green belt and the seriousness of any harm to it. However, they did not require a particular mathematical exercise nor did they require substantial weight to be allocated to each element of harm as a mathematical exercise with each tranche of substantial weight then to be added to a balance. The exercise of planning judgment was not to be an artificially sequenced two-stage process but a single exercise of judgment to assess whether there were very special circumstances which justified the grant of permission notwithstanding the particular importance of the green belt. The “cardinal test” and the “essential characteristics” of the policy remained the same through the changing iterations of the policy. The wording had been rearranged but the nature of the guidance and consequently the nature of the exercise to be undertaken by the decision maker had not altered: Doncaster Metropolitan Borough Council v Secretary of State for Environment, Transport and the Regions [2002] EWHC 808 (Admin); [2002] 16 EG 181 (CS) applied.
Piers Riley-Smith (instructed by Sefton Metropolitan Borough Council) appeared for the claimant; Sarah Reid (instructed by the Government Legal Department) appeared for the defendant; Michael Rudd (instructed by Claas Solicitors) appeared for the interested party.
Click here to read a transcript of R (on the application of Sefton Metropolitan Borough Council) v Secretary of State for Housing, Communities and Local Government
Eileen O’Grady, barrister