PLANNING - LOCAL GOVERNMENT

GREEN BELT : GREEN WEDGE : PLANNING PERMISSION : PLANNING POLICY GUIDANCE : SUSTAINABILITY : UNAUTHORISED  DEVELOPMENT : DEVELOPMENT ON METROPOLITAN OPEN LAND : FACTORS TO BE CONSIDERED IN DETERMINING VERY SPECIAL CIRCUMSTANCES TO JUSTIFY DEVELOPMENT : MEANING OF "ANY OTHER HARM" IN PARA.3.2 PLANNING POLICY GUIDANCE: GREEN BELTS

In assessing whether "very special circumstances" existed such that it was appropriate to justify inappropriate development in the green belt the words "any other harm" in Planning Policy Guidance: Green Belts (PPG2) para.3.2 referred to any harm that would arise from a development in a green belt and not simply any green belt specific harm such as loss of openness and impact on the green belt.

The applicant club (R) applied to quash a decision of a planning inspector appointed by the first respondent secretary of state dismissing its appeal against a refusal by the second respondent local authority to grant planning permission for a development at R's premises. R had unsuccessfully applied for retrospective planning permission for a fitness studio that it had constructed at its premises in an area of metropolitan open land. On appeal before the planning inspector, R accepted that the fitness studio constituted inappropriate development within the area of metropolitan open land but maintained that it was justified by very special circumstances, in particular that the club was not financially viable without the fitness studio. The planning inspector found that the construction of the fitness studio amounted to inappropriate development within the metropolitan open land and was contrary to various planning policies. In particular, the planning inspector concluded that having regard to Planning Policy Guidance: Green Belts (PPG2) para.3.2, which stated "¿ very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.", no special circumstances existed to outweigh the harm caused by the development. In reaching that conclusion the planning inspector held that the development amounted to an unsustainable intensification of the use of the premises as it required the use of less sustainable means of transport, which was contrary to PPG2 para.3.2. R contended that (1) the words "any other harm" in PPG2 para.3.2 referred to matters such as loss of openness and impact on the green belt and did not refer to issues such as sustainability so that the planning inspector had erred in considering the sustainability of means of transport to the fitness studio; (2) in assessing whether "very special circumstances" existed the planning inspector had failed to make a qualitative judgment as to the weight to be given to each particular circumstance before him.

HELD: (1) There were no qualifying words used in PPG2 para.3.2 and the words "any other harm" were to be given their plain and ordinary meaning such that "any other harm" meant that any harm that would occur through allowing a development in a green belt fell to be considered in assessing whether "very special circumstances" existed, Doncaster MBC v Secretary of State for the Environment, Transport and the Regions (2002) EWHC 808 (Admin), (2002) JPL 1509 considered. Accordingly, the harm referred to in PPG2 para.3.2 was not a green belt specific harm and the planning inspector had been entitled to have regard to the sustainability of the development in the context of PPG2 para.3.2. (2) In considering whether "very special circumstances" existed a planning inspector had to carefully evaluate the circumstances and factors before him and decide whether those circumstances cumulatively amounted to "very special circumstances", Wychavon DC v Secretary of State for Communities and Local Government (2008) EWCA Civ 692, (2009) 1 P & CR 15 applied. However, that approach to determining "very special circumstances" was not a straight jacket upon a planning inspector such that he was required to attribute an exact weight to each circumstance. In the instant case, it was not apparent from the planning inspector's decision that he had reached a cumulative decision as to whether the circumstances before him amounted to very special circumstances. Whilst the decision did set out his overall conclusion that no special circumstances existed, that was linked back to the individual circumstances and was not a cumulative decision. Accordingly, the planning inspector had erred in his approach as to whether special circumstances existed such that it was appropriate to allow the development.

Application granted

RIVER CLUB v SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2009)

 
QBD (Admin) (Frances Patterson QC) 7/10/2009
                                                                                                                                                                        “Lawtel”:  15.10.09