Metropolitan green belt — Development — Proposed food store — Permission already granted for another development — Balancing exercise of harm against advantage — Whether pre-existing permission amounting to “very special circumstances” — Whether Secretary of State’s decision reasonable
Tesco Food Stores Ltd applied for planning permission from Hounslow London Borough Council for a proposed development at Faggs Road, Feltham, which included a food superstore. The development site was within the metropolitan green belt. However, it was situated to the north of an area for which the council had already granted planning permission for three substantial buildings.
The Secretary of State for the Environment appointed an inspector to hold an inquiry into the application whether there were very special circumstances for allowing the proposed development within the green belt. The inspector’s recommendation was that planning permission should be granted. The Secretary of State rejected that recommendation. Tesco then applied for judicial review of the decision.
Held The application for judicial review was allowed.
1. Lord Donaldson of Lymington MR had said that where a developer could show that the advantages of his proposed development — albeit inappropriate — would outweigh any harm, that could amount to “very special circumstances” justifying the development: Pebrsson v Secretary of State for the Environment [1990] 3 PLR 66.
Thus where the proposed development was found to be inappropriate to a green belt, that in itself was demonstrable harm to an interest of acknowledged importance requiring refusal of planning permission — unless the developer established very special circumstances to the contrary.
2. The decision-maker, therefore, had to balance harm against advantage. In so doing, he had to weigh against the harm any other circumstances which might or might not include the advantages claimed. Permission should only be granted if he considered that those circumstances so outweighed the harm as to amount to very special circumstances justifying the planning permission grant.
3. As Tesco’s proposal was an inappropriate development for the green belt, the question for the inspector and Secretary of State was whether very special circumstances were established to justify such a development, having regard to the local development plan and policy and other material considerations.
The inspector had taken into account the unusual feature that the council had already made an exception to green belt policies by allowing substantial building work south of the site under appeal. He took the view that the fact that inappropriate development of at least the same impact as Tesco’s proposal would take place anyway was a very special circumstance justifying the grant of planning permission to Tesco. That was a planning judgment he was entitled to make on the material before him.
4. The Secretary of State had not asked himself the correct question. He had given unreasonably heavy weight to the council’s assertion that the site under appeal 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 Tesco’s proposal.
If he had asked the right question, keeping in mind his own declared purposes of green belt policy, and had conducted the Pebrsson balancing exercise, he could not reasonably have found that the existing permission to build south of the site was not a very special circumstance which would justify the grant of permission. The harm against which grant of permission must be balanced was only notional in the circumstances of the case.
Roy Vandermeer QC and Andrew Kelly (instructed by Berwin Leighton) appeared for Tesco Food Stores Ltd; and David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
