ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
MRS JUSTICE PATTERSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE LEWISON
| SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
REIGATE AND BANSTEAD BOROUGH COUNCIL
TANDRIDGE DISTRICT COUNCIL
|- and -
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Stephen Whale (instructed by Tandridge District Council Legal Services and Reigate and Banstead Borough Council) for the Second and Third Appellants
Christopher Katkowski QC and Alistair Mills (instructed by Wragge Lawrence Graham CO LLP) for the Respondent
Hearing dates: 9th October 2014
Crown Copyright ©
Lord Justice Sullivan:
Green Belt policy
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations." (emphasis added)
The Inspector's decision
"Submissions were made as to whether the Green Belt balancing exercise should follow the approach set out in the River Club judgment. Even though the judgment was made on the policy set out in Planning Policy Guidance 2, the wording in the Framework is very similar and I intend to follow the interpretation in the judgment. Furthermore this approach is reflected in decisions by the Secretary of State since the publication of the Framework."
"123. The harm to the Green Belt by reason of the inappropriate development, the loss of openness and the encroachment into the countryside has substantial weight. The harm to landscape character has moderate weight and the slight adverse visual impact a small amount of weight. The limited harm to the quality of life and learning environment through noise disturbance and the failure to satisfactorily resolve the capacity and mode of travel issues provide additional weight against the proposal. The overall weight against the proposal is
very strong. This conclusion takes account of the mitigation afforded by the use of planning conditions and planning obligations."
Having identified in paragraph 124 the other considerations on the positive side – safeguarding employment, the prospect of additional jobs, the expansion of business aviation and support to business initiatives in the area – the Inspector concluded in paragraph 125:
"125. The other considerations, when taken together, do not clearly outweigh the potential harm to the Green Belt and the other identified harm. Very special circumstances to justify the development do not exist. The proposed hard runway development fails to comply with national policy to protect the Green Belt set out in the Framework…"
"3. Control Over Development
Presumption against inappropriate development
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."
"26. Paragraph 3.2 of PPG2 is within the section of the PPG entitled "Control over development" and, within that part, subheaded "Presumption against inappropriate development". In my judgment, paragraph 3.2 is dealing with what is required to make inappropriate development acceptable in the green belt. That means considering the development as a whole to evaluate the harm that flows from it being inappropriate, together with any other harm that the development may cause, to enable a clear identification of harm against which the benefits of the development can be weighed so as to be able to conclude whether very special circumstances exist so as to warrant grant of planning permission.
27. It is of note that there are no qualifying words within paragraph 3.2 in relation to the phrase "and any other harm". Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. "Any other harm" must therefore refer to some other harm than that which is caused through the development being inappropriate. It can refer to harm in the green belt context, therefore, but need not necessarily do so. Accordingly, I hold that "any other harm" in paragraph 3.2 is to be given its plain and ordinary meaning and refers to harm which is identified and which is additional to harm caused through the development being inappropriate. It follows that I reject the argument that the phrase is constrained and applied to harm to the green belt only"
The judgment below
(i) that River Club was wrongly decided;
(ii) alternatively, that the policy context now contained in the Framework was so different that it required a different approach to the meaning of the words "any other harm" in paragraph 88: see paragraph 30 of the judgment.
"54. Now, as Mr Katkowski QC submits, the policy matrix is different in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. That includes when, for individual considerations in a planning application, it is appropriate to refuse planning permission. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.
55. Here, the individual non Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments?
56. On an individual basis given the clear guidance given in the NPPF I have no difficulty in concluding that, in this case, it was not right to take the identified non Green Belt harms into account. The revised policy framework is considerably more
directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in my judgment, it would be wrong to include that consideration as "any other harm".
57. That leaves the question of whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In my judgement it would not be right to do so. That is because the Framework is precisely as it says: a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seems to me to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. Such phraseology does not appear in the Green Belt part of the NPPF."
"60. In those circumstances I do not need to hold that my previous decision in River Club was wrong. It was taken in a different policy context where there was greater scope for flexible interpretation. That is not to say that I am ignoring or disregarding the jurisprudence in Ex Parte Taj. The fact is that the instant decision had to be determined in a NPPF policy context. If the consequence of that means that non Green Belt harms of a lesser effect than those which would warrant refusal on an individual basis cannot be considered as part of a cumulative impact of a development proposal, as set out, that is due to the effect of the wording of the NPPF."
The Respondent's case
(i) While there have been some detailed changes to Green Belt policy in the Framework, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt Policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the Framework, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: "As with previous Green Belt policy."
(ii) The Impact Assessment in respect of the Framework published by the Department for Communities and Local Government in July 2012 said that "The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed." Under the sub-heading "Policy Changes" the Impact Assessment said that "Core Green Belt protection will remain in place." It then identified four proposed "minor changes to the detail of current policy" which would resolve technical issues, but not harm the key purpose of the Green Belt, "as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained." On the face of it, paragraphs 87 and 88 of the Framework would appear to constitute the "central policy" which the Government did not intend to change.
(iii) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector's statement in paragraph 19 of her decision: that the River Club approach to "any other harm" in the balancing exercise is reflected in decisions by the Secretary of State since the publication of the Framework. We were not referred to any decision in which a different approach has been taken to "any other harm" since the publication of the Framework.
starting point must be the words of the policy in paragraph 88. Not only are the words "any other harm" in the second sentence of that paragraph unqualified, they are contained within a paragraph that expressly refers, twice, to "harm to the Green Belt." When the policy wishes to restrict the type of harm to harm to the Green Belt it is careful to say so in terms.
"51. …The effect upon the landscape character and the visual impact of a development proposal are clearly material considerations but are different from a consideration of harm to a Green Belt. If a development proposal contributed to the enhancement of the landscape, visual amenity and biodiversity within the Green Belt those could well be factors in its favour as part of a very special circumstances balancing exercise…."
The wider policy context
"improvements can be undertaken within the transport network that cost effectively limit the significant impacts of the development."
Paragraph 32 continues:
"Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe."
"37. To take an easy example of the consequences of applying the River Club approach to the [Framework]: if a development is sited outside the green belt, it can "only" be refused on transport grounds if the impact would be "severe" (paragraph 32) but if the site is in the green belt then either instead of or in addition to this very specific policy test, any adverse transport impact (even if far less than "severe" and even if the impact was on roads outside the green belt) would lead to a refusal of permission unless "clearly outweighed" by "very special circumstances" under [paragraph] 88."
"Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the [Framework] as to warrant refusal …. it would be wrong to include that consideration as "any other harm"."
It is not clear whether the Judge considered that where an individual non-Green Belt consideration did reach the impact level for refusal prescribed in the Framework, eg where there would be "significant harm" to biodiversity, such a consideration could then be taken into account in the weighing exercise as "any other harm". If that was the Judge's approach, it was not supported by Mr. Katkowski who submitted that non-Green Belt harm, whether or not it reached the impact level prescribed for refusal in the Framework on another ground, such as transport or biodiversity, was not "any other harm" for the purposes of paragraph 88 of the Framework.
Lord Justice Tomlinson: