Surrey County Council v Secretary of State for Communities and Local Government

  J U D G M E N T (As Approved by the Court) 1.       MR JUSTICE MITTING:  By an application dated 30 June 2005,  Mr Dennis Read applied for planning consent for use of land at Capital House, Woodham Park Road, Woodham, Surrey for waste transfer and re-cycling activities.  Surrey County Council, the relevant planning authority for this purpose, refused consent on 1 August 2005.  Mr Read appealed.  By an appeal decision dated 20 April 2007, following an Inquiry on 3 April and a site visit on 4 April 2007, the inspector Mr Andrew Freedman allowed the appeal subject to conditions.  2.       The site had a lengthy and complex planning history but – as at the application and appeal dates – it was used for servicing of vehicles, screening of soil, the sorting of construction waste and for offices and car parking.  Most but by no means all of the activity on the site was subject to earlier grants of planning consent but there were activities on site and, it was claimed, part of a bund which surrounded its northern boundary, which were the subject of contemplated enforcement proceedings by the relevant planning authorities, Surrey County Council and Runnymede District Council.  3.       This is a challenge by Surrey County Council under Section 288 of the Town & Country Planning Act 1990 on the  basis that the inspector’s decision was outwith the powers of the Act, in the expanded sense given to that phrase by the case law beginning with Ashbridge Investments v Ministry of Housing and Local Government [1965] 1 WLR 1320.  4.       The site is in the Green Belt.  At the heart of the claimant’s challenge is the proposition that the inspector did not properly apply well known national government guidance contained in PPG 2 paragraph 3.2 about developments in the Green Belt.  PPG 2 paragraph 3.2 states: “Very special circumstances to justify inappropriate  development will not exist unless the harm by reason of the inappropriateness, and any other harm, is clearly outweighed by other considerations.” 5.       Helpfully the application of paragraph 3.2 of PPG 2 has been the subject of a recent decision of the Court of Appeal in Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692, in which an over-prescriptive application of the policy –  decided upon, as it happens, by me – was held to be erroneous and an earlier statement of Mr Justice Sullivan in Doncaster MBC v Secretary of State for the Environment, Transport and Regions [2002] JPL 1509 paragraph 70 was approved: “Given that inappropriate development is by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the benefit to the appellant’s family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.” As is apparent from that quotation, the case concerned a gypsy family but with appropriate alteration to the wording the principle is apt to cover any inappropriate development in the Green Belt. 6.       Lord Justice Carnwath, giving the judgment of the court,  at paragraph 24 emphasised that a judgment about the balance between very special circumstances and harm in Green Belt development was one to be made by the planning inspector on the basis of the evidence before him and his view of the site.  In paragraph 42 he made it clear that even where the inspector’s view made difficult the drawing of a clear line by a local planning authority in subsequent cases nevertheless the view of the inspector and the discretion exercised by him should be respected, save in the face of legal error including perversity.  7.       The inspector in this case identified the main issues accurately in paragraph 3 of his decision letter: “(a) whether the proposal amounts to inappropriate development in the Green Belt and, if so, whether there are any very special circumstances sufficient to overcome the presumption against such development;  and  (b) the effect on the living conditions of the occupiers of nearby residential premises and users of the adjacent garden centre in terms of noise.” He reminded himself uncontroversially of the applicable development plans.  He did not in terms set out the wording of PPG 2 paragraph 3.2.  The fact that he did not do so is the first of the criticisms made by Mr Wald on behalf of the claimant.  Mr Wald submits that was both a freestanding error and an indication of further errors of approach on the part of the inspector.  Indeed he suggests that he did not apply PPG 2 paragraph 3.2 accurately or fully.  8.       The proposition that the inspector did not have paragraph 3.2 of PPG 2 clearly in mind – indeed at the forefront of his mind – is simply untenable.  It is probably the most well known in planning circles of all the paragraphs in the guidance relating to the Green Belt in PPG 2.  It has been the subject of scores – perhaps hundreds – of planning inquiries and a significant number of decisions of the courts over the years.  Further it cannot have been overlooked by an experienced planning inspector, having, as this inspector did, to consider its very terms.  He set out the issues raised by PPG 2 paragraph 3.2 with complete clarity in  paragraph 3 (a) of his decision letter.  Further in paragraph 31 he used the language that comes from the very words of paragraph 3.2, and not on my brief reading of the local policies from any of them: ” ….. I conclude that there are a number of very special circumstances.  The identified harm is clearly outweighed by a combination of other considerations.” 9.       I therefore reject the first of the grounds that the inspector did not have clearly in mind the words of paragraph 3.2 of PPG 2, notwithstanding that he did not set them out in terms in his decision letter.  10.     It was common ground at the Inquiry, as the inspector reminded himself at paragraph 7, that the proposal amounted to inappropriate development within the Green Belt.  He therefore concentrated on the very special circumstances, sufficient or otherwise, to overcome the presumption against development.  In paragraph 8 he began with the question of openness and reminded himself that openness could be harmed even by an inconspicuous development.  11.     Mr Wald submits that his approach to the question of openness was flawed.  He submits that the inspector gave    inadequate weight to the impact on the openness of the countryside by any development within the Green Belt, let alone and as distinct from any further harm that might be caused by the actual development; but that is not a fair criticism of the inspector’s reason: he directed himself in terms to take into account both factors.  In paragraph 8 he noted, in language which is challenged by Mr Wald, that – ” ….. This harm in principle is distinguishable from practical harm, for example, the harm that results from the actual reduction in openness.” Mr Wald submits that the inspector, in adopting the phrase “practical harm” has used a phrase that it is unknown in planning law and practice and demonstrates an error of approach.  12.     On the contrary, it seems to me the inspector has used ordinary language to explore precisely that which PPG 2 paragraph 3.2 requires him to explore, namely whether or not  there was additional harm to the openness of the countryside caused by the particular development on this site.  13.     The inspector identified what it was in paragraph 9 by way of examples.  The examples that he gave were – ” ….. there would be an increase in the number of heavy goods vehicles visiting and parked within the site ….. there would be stockpiles of waste material of increased number and height ….. [and]  the ….. acoustic fencing [which he proposed to apply as a condition of allowing the development]  would have an impact on openness.” These passages demonstrate, contrary to the claimant’s  submission, that the inspector applied PPG 2 paragraph 3.2  precisely correctly.  14.     The inspector went on to note and to give reasons for his view that in practice the site was remarkably contained,  limited in space and defined on its northern boundary by a bund, of which more later.  He noted that the proposal that he considered for the erection of an acoustic fence to minimise the impact of noise on neighbours would be anomalous and would have an impact upon openness.  He thought, as stated in paragraph 13 of his reasons, that its impact could nonetheless be minimised.  In paragraph 14 he expressly had regard to the encroachment which this development would have on the countryside and its tendency to coalesce surrounding built-up areas, in particular Woodham and Addlestone.  15.     In the context of openness, the inspector noted that part of the appeal site which he said was about 0.25 hectares to the north of the site had the status of open amenity land.  Mr Wald criticised his assessment of the extent of the amenity land, submitting that it was in fact 0.70 hectares, not 0.25 hectares.  It is not submitted that that difference – error, if it was an error – makes any practical difference to his reasoning.  His overall conclusion was that – ” ….. the site as a whole is well contained within strong defensible boundaries” and that it was already a developed area, commercial in nature.  16.     The inspector’s overall conclusion on the question of coalescence was that the development proposed would not involve either material encroachment or coalescence.  17.     Drawing together the threads in paragraph 15, he reached this conclusion: “With regard to harm to the Green Belt, I conclude that there would be harm by reason of inappropriateness.  Nevertheless, to my mind, the practical harm would be minimal.  Whilst this is not a positive benefit, it is important in balancing the overall harm.” Mr Wald submits that he misdirected himself in reaching that conclusion.  In effect, instead of treating what the  inspector characterised as “practical harm” as an additional element of inappropriateness as is required by paragraph 3.2 of PPG 2, he treated it as a minimising factor.  Plainly, from the words that he used, he did not.  18.     Thus far in his decision letter the inspector accepted that the development was inappropriate both because it was  within the Green Belt and – because of features specific to it – caused additional harm.  He did so in language that is readily understood and which, without room for genuine argument, demonstrates what his conclusions were and why he reached them.  19.     The inspector turned then to what was the critical issue in the case: whether or not there were very special circumstances and, if so, whether they clearly outweighed the harm caused by the development to the Green Belt.  He identified four features advanced as constituting together very special circumstances in paragraph 18 of his decision letter: (1) need, (2) absence of non-Green Belt alternatives, (3) characteristics of the site, (4) contribution to sustainable waste management.  In paragraph 19 of his decision letter he concluded that there was an identified need of up to 800,000 tonnes a year of re-cycling facilities for aggregates within Surrey by 2016 and that on the claimant’s estimates there would be a shortfall of about 200,000 tonnes.  20.     Mr Wald criticises the inspector for failing to appreciate and give proper weight to the fact that any contribution to the reduction in that 200,000-tonne deficit by activities on this site would be very small.  It was the fact that the proposed development would only contribute very modestly to reduction of that shortfall.  The inspector said as much in paragraph 24: “I appreciate that the contribution of the appeal site would be small.” He went on to note that there were also cogent arguments in favour of concentrating re-cycling on larger sites, but nevertheless concluded that this site would be a positive contribution to the claimant’s requirements and so to  sustainable waste management.  The proposition that he did not realise that the contribution was small is belied by his own words.  The view that it was nonetheless a useful contribution is one that he was entitled to hold.  In paragraph 25 he expressly found that the absence of non-Green Belt alternatives and a contribution to sustainable waste management could not constitute very special circumstances.  21.     Accordingly by reference to the factors which the inspector had identified in paragraph 18 he concluded that (1), (2) and (4) were present but not by themselves very special circumstances.  His reasoning in that respect does not seem to me to be capable of challenge under Section 288. 22.     The inspector went on to consider the particular characteristics of the site.  He noted its planning history and the use of the site which – either by consent or by long use – had been established.  A criticism by Mr Wald is that he failed to have regard to the fact that some of the use, in particular on the amenity land, was unlawful.  The short answer to that is that he did not.  In paragraph 28 he specifically addressed that issue: “At the time of my site visit, it was clear that  activity had strayed into the northern portion of the site.  I have disregarded any extension of the lawful use.” He went on to note the existence and position of the bund,  in particular where it joined a small river called The Bourne, and noted in terms that the existence of a bund was, it was common ground, immune from enforcement action.  An issue arises, with which I will deal later in this judgment,  about the height and precise location of the bund.  23.     The inspector noted in paragraph 29 two factors that he clearly took into account.  First, that the site was well contained and clearly commercial in nature.  Secondly, that much of the activity which would be permitted if he were to allow the appeal was already being carried on – albeit for a different purpose – under existing consents, including the receipt, sorting, treatment and stockpiling of materials and the use of heavy plant on the site. 24.     The inspector concluded that there would be a positive advantage from granting the appeal, namely, as he expressed himself in paragraph 30, the opportunity to “contain, regularise and limit activity on the site”.  He expressed it in slightly different terms in paragraph 37 by concluding that the grant of a clear-cut planning consent with appropriate conditions would provide “an opportunity for a fresh start”.  His critical conclusion was expressed in paragraph 31 which I have already cited.  25.     Mr Wald criticises him for failing in terms to identify the very special circumstances which he found.  It is true he did not list them in paragraph 31 of his decision letter.  But if the decision letter is read as a whole it is perfectly clear beyond possibility of doubt that in paragraphs 18 to 30  he identified the factors which he regarded together as amounting to very special circumstances and which outweighed the acknowledged harm to the Green Belt.  26.     Applying the well known test set out by Lord Brown in South Bucks District Council and Another v Porter (No 2) [2004] 1 WLR at paragraph 36, I have no difficulty in finding  that this inspector’s reasoning was intelligible.  The reasons challenge accordingly fails.  There remains a perversity challenge.  It is not necessary for me to deal with that at any length.  As Wychavon makes clear, the judgment about whether or not circumstances amount to very special circumstances which clearly outweigh the harm to the Green Belt is a matter for the judgment and discretion of the planning inspector.  It is simply impossible to conclude that his carefully reasoned decision was perverse.  It may well be that another inspector faced with the same considerations would have reached a different view.  But this is pre-eminently a matter for planning judgment on which the band of answers that might be given is wide.  This inspector’s  decision fell securely within that band.  27.     I turn finally to a matter which was added as a ground of appeal by amendment but which caused me initially some concern.  I have already referred to the bund at the north-western and north-eastern edge of the site.  There was evidence which would not appear to have been in dispute that although, by dint of long use, the existence of the bund was immune from enforcement action, it had nonetheless increased in height in recent years within such a time as would have permitted enforcement action by the claimant or by Runnymede District Council.  28.     The inspector regarded – as I have explained – the existence of the bund as an important means of reducing the visual impact of this site and its impact on the openness of the countryside.  To give effect to that view, he imposed the following condition as condition 15: “15) The scheme of landscaping referred to in Conditions 13) and 14) shall, amongst other things, include the retention of the bund along the northwestern boundary of the site at a height of not less than 4m; new planting to the northern side of any acoustic or other fence exceeding the height of the bund; stabilisation of the bund such that no soil, trees or other material falls into the Addlestone Bourne; a vegetated buffer zone at least 8m wide, screened and delineated from the site, alongside the Addlestone Bourne; and ecological mitigation as set out in the recommendations of the report ‘Ecological and Reptile Survey’, March 2005.  Any planting within the buffer zone shall consist of locally native plant species of UK genetic provenance.  The scheme shall be carried out in accordance with the approved details.” A standard condition – condition 13 – required that – ” ….. no development shall take place until there has been submitted to and approved in writing by the County Planning Authority a scheme of landscaping ….. ” 29.     Mr Wald submits that condition 15 is (1) fundamental to the inspector’s decision to grant consent on appeal and (2) ultra vires because unreasonable.  He referred to paragraph 22 of Circular 11/95 – Use of Conditions in Planning Permissions – which under the heading “Non-Planning Controls” states: “Other matters are subject to control under separate legislation, yet also of concern to the planning system.  A condition which duplicates the effect of other controls will normally be unnecessary, and one whose requirements conflict with those of other controls will be ultra vires because it is unreasonable.” 30.     Mr Wald submits that the bund where it abutted The Bourne was the subject of controls which conflicted with condition 15.  The controls he identified were: first, the possibility that the Environment Agency might take enforcement action to give effect to its requirement for an 8 metre-wide buffer zone between the base of the bund and the edge of The Bourne;   secondly, that Runnymede District Council was contemplating  taking enforcement action under the planning laws to reduce the height of the bund; thirdly, that the claimant itself was contemplating similar action again under the planning laws.  31.     The second and third possibilities can be dismissed summarily; they are both planning controls.  Accordingly, they do not fall within the scope of the guidance in paragraph 52.  The grant of consent subject to condition 15  would have the effect of overriding any proposed enforcement action because it would make lawful that which may previously have been unlawful.  32.     So far as the Environment Agency is concerned, their position at the Inquiry appears to have been that they consented to the existence of the bund provided that the 8-metre buffer zone was retained.  It is far from clear to me, from the plans that I have been shown, whether, on the ground, that 8-metre buffer zone at the time of the Inquiry existed.  The inspector conducted a site view, and was far better placed than I am to make that judgment.  In any event, condition 15 in terms requires that a vegetated  buffer zone “at least 8 metres wide” is to exist alongside The Bourne.  It is hardly likely that the inspector would have imposed a condition that was incapable of fulfilment.  33.     These considerations of detail lead me to the conclusion that condition 15 is plainly not unreasonable, first, because I cannot conceive that the inspector would have imposed a condition that was incapable of fulfilment and, secondly, because it seems to me – even in the terms in which condition  15 was drafted with the indefinite article between “the retention of” and “bund” – it can be implemented by, if necessary, re-configuring the bund as part of the requirement that it be stabilised.  In any event, the imposition of condition 15 would prohibit the development otherwise permitted unless its precise terms are fulfilled.  The condition was calculated, it seems to me, to ensure that a  bund complying with the Environment Agency’s requirements  along the north-western boundary of the site was created either by re-configuration, or by leaving what was on site in place, so that the conditions did not conflict with controls imposed by the legislation enforced by the Environment Agency or by the council.  Condition 15 was not, on that analysis,   unlawful or unreasonable.  34.     For those reasons this challenge to the inspector’s decision is dismissed. 35.     MR KOLINSKY:  I am grateful.  On behalf of the defendant, I do make an application for costs.  A schedule has been served. 36.     MR JUSTICE MITTING:  It has not reached me. (Same passed) If there is to be any substantial argument about costs – in other words if anything other than brief agreement – I will hear it at quarter-past-two. 37.     MR WALD:  I doubt there is any substantial argument.  The principle and quantum of the costs are both agreed.  The only matter that I raise is in relation to the amendment; ground 8.  A formal application to amend was made following an attempt to agree the amendment. 38.     MR JUSTICE MITTING:  You got permission for it from Mr Justice Sullivan. 39.     MR WALD:  Yes, but there were some costs incurred in seeking to agree it with the first defendant.  You will see correspondence to that effect at A23 and following. 40.     MR JUSTICE MITTING:  What is your suggestion? 41.     MR WALD:  That a small portion of the costs of the claimant –  that it seeks to recover against the defendant – whether that is by way of set-off or a separate award. 42.     MR JUSTICE MITTING:  The usual principle is if you want to amend  your grounds of appeal you pay for the cost of doing it. 43.     MR WALD:  The costs of amending it were increased because of the exchange that went on and the refusal of the first defendant to accept the amendment.  It is not the application itself that is the subject of this application for costs; it is increase in the costs of the application occasioned by – – – – – 44.     MR JUSTICE MITTING:  It has all been done on paper.  I am against you on that.  If you want to amend your grounds, as you have done, you have to pay for the costs of it.  No claim by the interested party? 45.     MR PICKLES:  No. 46.     MR JUSTICE MITTING:  I assess the defendant’s costs at £22,534.12 including VAT where appropriate. 47.     MR KOLINSKY:  That would be very nice but there is a further schedule that comes to £12,358.  That is the order I am to seek. 48.     MR JUSTICE MITTING:  The schedule I have been given does not have that figure on it anywhere.  I will assess the costs in whatever sum has been agreed between you as reasonable and order the claimant to pay that sum forthwith.