ON APPEAL FROM QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
| The Queen on the application of Siraj
|- and -
Kirklees Metropolitan Council
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Mr Giles Cannock ( instructed by Kirklees Council Legal Services ) appeared on behalf of the Respondent.
The Interested Party appeared in person.
Crown Copyright ©
Lord Justice Sullivan:
"…due to the receipt of public objection questioning the applicant's evidence for very special circumstances to justify this inappropriate development which would otherwise be unacceptable in the Green Belt."
"The site is shown as Green Belt and Area of High Landscape Value on the UDP ... The following policies are relevant"
Included in the list of relevant policies was policy D8 in the UDP, summarised as: "inappropriate development will not be permitted in the [Green Belt] except in very special circumstances." The report also referred to PPG 2 : Green Belts, with the comment "PPG 2 -- Green Belts reflects the terms of D8."
"It is appreciated that this application is a departure from green belt policy but hope that weight is given to the efforts of the business has made to find more suitable land / premises and the need for this business to be retained in this area for the reasons outlined."
The representations of those who supported and objected to the proposed development were then summarised, followed by the applicant's (the first interested party's) supporting information and his response to the objections.
"The proposal is without question inappropriate development in the Green Belt. UDP policy D8 states that such development will not be granted in the Green Belt unless very special circumstances can be demonstrated by the applicant. This is reflected in PPG 2 which states that 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."
Pausing there, is it is to be noted that Mr Roe accepted on behalf of the appellant that, insofar as this paragraph dealt with PPG 2, it was an accurate summary of the relevant part of PPG 2. He was right to do so: see R(Wychavon District Council) v The Secretary of State for Communities and Local Government  EWCA Civ 692 per Carnwath LJ at paragraph 26.
"The main issue for the Sub-Committee is whether members consider that there are very special circumstances to outweigh the harm caused by the development. The very special circumstances put forward by the applicant is that he provides a specialised service to this particular farming community for which there is no other provider in the area and for which farmers would otherwise need to travel a greater distance or experience delays in accessing the service. This is strongly disputed by objectors and in turn the applicant has sought to address their concerns.
Your officers conclude that the applicants business is the franchise for one agriculture machinery manufacturer which has written in support of the proposal. The business provides repairs for the agricultural community and whilst there are other engineering facilities in the area available to local farmers, it is the only local firm supplying specialist repairs for that franchise. Verbal information given from the National Farmers Union area office supports the view that farmers prefer main dealers as the equipment is technical and such dealers are more likely to have the specialist equipment and knowledge to ensure that faults are identified efficiently and without delay. The NFU also confirmed that there a few specialist main dealers in the locality.
If Members accept this view and the need to retain the business in the locality they must then be satisfied that this location is the only viable option and that there are no others which would be more appropriate in terms of planning policy. In this respect the applicant has identified previous options and the reasons why they were unacceptable. The applicant states financial reasons in some instances although no figures have been produced as well as refusal of a landowner to sell the site. The applicant has also stated that there are practical difficulties associated with his present site. Notwithstanding the submissions from the objectors it is Officers' view that financial constraints are a material planning consideration. The applicant has not provided any third party evidence to confirm this and Members need to be satisfied that this site is the only option in order to accept financial constraints as very special circumstances to justify inappropriate development in the Green Belt. In Officers' view the lack of third party evidence weakens the applicant's case however, when combined with the other evidence of need and support from the Council's EDS officer it is considered that approval can be recommended.
On balance it is considered that very special circumstances have been demonstrated by the applicant. If Members look favourably on the proposal it is recommended that officers be delegated to grant permission with appropriate conditions subject to a S106 Agreement to ensure that the development is removed upon cessation of occupation by the business and the site restored."
"The applicant has demonstrated [i] the specialist nature of his operation, [ii] the operational requirements of customers, [iii] the difficulties of remaining in his present location and [iv] the lack of other suitable alternative sites all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt. Further the design and materials would not be harmful to the character of the area nor would the use be harmful to road safety." [numbering added for ease of reference]
It should be noted that, by the time that planning permission was granted, policy D8, which had been referred to in the report, was no longer part of the UDP, not being one of those policies that had been saved.
The grounds of appeal.
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances.
3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. 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. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
"In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
Lord Justice Elias:
Lord Justice Tomlinson:
Order: Appeal dismissed