Green belt – Development plan – Planning considerations – Claimant applying to extend factory into green belt – Proposed development constituting inappropriate development – Inspector dismissing appeal against refusal of consent – Claimant applying to quash decision – Whether inspector erring in law in exercising planning judgment – Application granted
The claimant operated a factory that had formerly been a grain silo and, in 1988, began reuse it for the purpose of milling foodstuffs. The factory’s boundary abutted the edge of the green belt. The claimant applied to the second defendant local authority for planning permission to extend the factory. The proposed extension would encroach onto green-belt land but, since it would come within the curtilage of the existing factory, the extension site was categorised as previously developed brownfield land.
The second defendants refused planning permission and the claimant appealed to the first defendant secretary of state, whose inspector dismissed the appeal. The claimant applied to quash that decision under section 288 of the Town and Country Planning Act.
By section 38(6) of the Planning and Compensation Act 2004, a decision as to whether to grant planning permission had to be taken in accordance with the development plan unless material considerations indicated otherwise. The claimant contended that the inspector’s decision should be quashed because he had erred in law in his interpretation of paras 3.1 and 3.2 of PPG 2, having applied the wrong test in determining the character and weight of the considerations that might give rise to “very special” circumstances justifying inappropriate development in the green belt.
Held: The application was granted.
The words “very special” in para 3.2 were not to be treated as the converse of “commonplace”. Rarity might contribute to the special quality of a particular factor, but what was required was a qualitative rather than a quantitative judgment of the weight to be afforded to a particular variable for planning purposes: R (on the application of Wychavon District Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2008] PLSCS 178 considered.
Contrary to the approach of Sullivan J in R (on the application of Chelmsford Borough Council) v First Secretary of State [2003] EWHC 2978 (Admin); [2004] 2 PLR 34, the two elements of para 3.2, that is, the existence of “very special” circumstances and the need to outweigh the harm to the green belt, should not be rigidly divided. The factors that made a case very special could be the same as, or at least overlap with, those that justified holding that green-belt considerations were clearly outweighed.
Given that inappropriate development was by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further limited harm caused to the openness and purpose of the green belt was clearly outweighed by the benefit to the claimant so as to amount to very special circumstances justifying an exception to green belt policy: Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin); [2002] JPL 1509; [2002] 16 EG 181 (CS) applied.
The inspector had been entitled to consider the circumstances individually and cumulatively and ultimately to decide whether they amounted to very special circumstances. However, before reaching a conclusion he had to exercise a judgment and assess the quality of the various factors according to planning principles and considerations. The inspector had issued a careful and well-constructed decision letter, but it was impossible to disentangle the extent to which his conclusions on weight were influenced by his erroneous test of looking for the unusual or rare factor.
Furthermore, the qualitative judgment was for the inspector to make and not the court. Accordingly, the decision letter had to be quashed and the matter remitted to another inspector for reconsideration.
Matthew Horton QC (instructed by Marrons) appeared for the claimant; Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
