QUEENS BENCH DIVISION
B e f o r e :
| SAMUEL SMITH OLD BREWERY (TADCASTER)
|- and -
|SELBY DISTRICT COUNCIL
MR I H and MRS K S HUTCHINSON
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip Petchey (instructed by Selby District Council) for the Defendant
The Interested Party did not appear and was not represented.
Crown Copyright ©
"- to check the unrestricted sprawl of large built-up areas;
- to safeguard the surrounding countryside from further encroachment;
- to prevent neighbouring towns from merging into one another;
- to preserve the special character of historic towns; and
- to assist in urban regeneration."
"Inside a Green Belt, approval should not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing building for purposes other than agriculture and forestry, outdoor sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area." (my emphasis)
The underlined words are not to be found in the 1995 Guidance.
"After the two refusals of planning permission in 1992 it would have appeared that the only impediment to the expansion of their business by the construction of a suitably sized building was the objection to direct access to the A1 and that when this was removed a planning permission would issue."
It is said on behalf of the Claimant that this vitiated the decision-making process because it was misleading. I disagree. It is possible that it gave a misleading impression in that paragraph and in paragraph 79 but it is no less possible that the tense of the verb gave a true impression and that members of the committee may have taken the statement at face value. I accept that they were certainly not helped by any clear advice to the effect that the 1995 guidance materially altered the situation and that the Applicants had been advised by experts about the change of policy. The report is open to criticism for these deficiencies but if they stood alone they would not justify review of the planning permission by this Court.
"31. I turn then to consider Mr Village's second submission which was that no reasonable planning authority could have regarded the lack of objection on highways grounds as capable of amounting to very special circumstances. I would accept that the mere lack of a highways objection would not be capable in itself of constituting a very special circumstance, but I am not persuaded that that is how the Planning Committee would have understood the point that was being made.
32. The Minutes record that the very special circumstance being referred to was that the two previous refusals on the site were on highway grounds only and that that issue had now been overcome. The use of the word "only" is, in my view, important. The fact that the two previous refusals were on highway grounds only means that there was no refusal on Green Belt grounds. The fact that there was no Green Belt objection on the two previous occasions would, in my view, be capable of constituting a very special circumstance and, as I understand it, that was accepted by Mr Village.
34. …….it does not affect the fact that the committee were entitled to have regard to the fact that the two previous refusals were on highway grounds only, not on Green Belt grounds, when considering whether there were very special circumstances. My conclusion, therefore, is that Mr Village is right in his first submission and wrong in his second submission."
"I do however consider that the personal circumstances of the Applicants amount to very special circumstances. I consider that it would be very harsh in the circumstances that arise to refuse the Applicant planning permission for development which would allow them to expand their business. Members will recollect that Mr Justice Harrison accepted that the fact that there was no Green Belt objection to the two previous applications in 1991 and 1992 was capable of amounting to very special circumstances and this fact lies, it seems to me, at the heart of the very special circumstances which I have identified."
"The business comprised of general livery, the breaking and schooling of horses, the sale preparation of horses, and holiday clients. The equestrian centre, which has a capacity of 7 horses, has enabled Mr and Mrs Hutchinson to develop that part of their business devoted to the breaking and schooling of horses. They buy foals which they subsequently sell as yearlings. The foals are "quality bloodstock" and the centre has been an immediate success.
16. Mr and Mrs Hutchinson have supplied the District Council with figures of their net profit for the last 5 complete accounting periods. …."
The figures revealed net profit of between £12,500 for the year ending May 1997 (i.e. before the centre was constructed) and about £27,000 for the year ending May 2001 if foot and mouth influences were discounted.
"The Applicants have worked hard to build up their business in a location which - in my judgment - subject to Green Belt issues - is suitable for it.
Limited additional material relating to the Applicants is to be found in a statement of Malcolm Stuart of Weatherall Green & Smith of 18th January 2000 which places reliance upon the individual circumstances and use of the property by the Applicants, and a report of December 1998 by Weatherall Green & Smith which sought to establish need and exceptional circumstances sufficient to justify the development. At the latter time, the highway objection was about the disappear because of substantial highway works in the vicinity.
"two very important points:
1. Our clients are effectively a husband and wife team, work 7 days a week, 51 weeks a year and on average put in between them well in excess of 80 hours per week for a level of income which is barely above the national average wage for one person. The expansion of their business is now a necessity which cannot be achieved without the provision of the building in question.
2. It is only through their love of horses that their enthusiasm has been sustained for the period of time to date and this cannot continue indefinitely with the current income being produced. We would further add that as part of their current income, an integral part of the breaking in of young horses which is in itself a very dangerous part of their occupation and if for any reason either of our clients were to sustain serious injury through this activity it could mean a lay off of anything between 6 and 12 weeks which would effectively cripple their business (sic). As part of their planned expansion scheme they wish to promote their equestrian business on a much broader front which will hopefully take away to a degree, although not wholly, a very dangerous part of their ongoing business……"
On the assumption that planning permission is granted for my clients equestrian centre this will incorporate 7 new stables of which four will be solely for our clients own use. The development of the equestrian centre is in the main for the schooling and breaking of horses whereby our clients will be involved in buying foals in order to re-sell subsequently as yearlings."
In their conclusion they said:
"The proposal is an exceptional circumstance for development in the Green Belt and there is a definite need for the new building in order to secure the future prosperity of the Applicant's business….."
"Looking at the matter in practical terms, in relation to this particular application I think that the relevance of the fact that the development has a limited impact upon the openness of the Green Belt is that the very special circumstances which the Applicant needs to show are less weighty than they would need to be if the impact were greater…."
"It is important that the need to establish the existence of very special circumstances, not merely special circumstances in Green Belt cases, is not watered down. Even if it cannot be categorised as perverse, this decision is so perplexing on its face that it is of particular importance that the inspector should be seen to have applied the correct test in Green Belt policy terms."
The decision letter in that case did not state in terms that there were very special circumstances which justified the grant of permission for inappropriate development in a Green Belt. Sullivan J. said,
"…..it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt. That policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of many permissions would destroy the very qualities which underlie Green Belt designation. Hence the importance of recognising at all times that inappropriate development is by definition harmful and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt."
THE DEPUTY JUDGE: I am going to hand down the judgment. There are lots of copies here. You have already seen a draft, I know. Mr Village, you have kindly drawn my attention to one or two matters. I think I have accepted everything you have said re minor correction. I was not responsible for the heading, that was done by the clerk, they got a number of other things wrong, and they have been corrected. Mr Petchey submitted a note asking for clarification, did you see that Mr Village?
MR VILLAGE: My Lord I did, and my only comment about it is that I think my Lord's judgment is pellucid and no further clarification is necessary.
THE DEPUTY JUDGE: You are very kind. I thought that if they wanted further clarification I was prepared to give it, and therefore did not think it was quite as pellucid as you kindly say. What I am minded to do is to add, minimally, to the judgment at paragraph 14, to insert a sentence in the fifth line of that paragraph, after the words, "very special circumstance". The sentence I would insert is, "That is an example and is not intended to be exhaustive."
At the end of paragraph 25 to add a few lines as follows:
"At the request of the Defendant and by way of clarification I add this: That the potentially very special circumstances identified by Harrison J cannot in my judgment have survived the 1995 change of policy and the absence of reliance before that change, sufficient now to be more than a component of this sad planning history."
So I have acceded to Mr Petchey's request for something additional, and I hope it is of assistance to him, even if it is not of assistance to him in another way.
MR JONES: My Lord, I am grateful. Could I also convey Mr Petchey's apologies. I am grateful to your Lordship, on behalf of Mr Petchey, for sitting early in delivering judgment. As matters turned out in the matter that Mr Petchey is engaged, the timetable meant he is currently in the middle of his oral submissions in front of Collins J, so could I convey his apologies.
THE DEPUTY JUDGE: I am sorry not to see him, but that is very kind of him. Now where have we got to in relation to costs?
MR JONES: My Lord, if my learned friend does not mind me dealing with it, costs have been agreed, I understand, and I have a letter from my instructing solicitors which accords with my discussions with my learned friend in the sum of £26,500 inclusive of VAT.
THE DEPUTY JUDGE: That is very interesting, because that is almost exactly the figure to which I had come.
MR JONES: That is gratifying, my Lord.
THE DEPUTY JUDGE: Without knowing how you got to your figure, I had come to a figure which did not include VAT, of £25,000. It has to be almost exactly the same, I think.
MR JONES: My Lord, I think that is right.
THE DEPUTY JUDGE: Very well, in that case I, by consent, award costs in the sum agreed in favour of the claimant and against the defendant, and make no order in relation to the interested parties.
MR VILLAGE: My Lord, I therefore ask, formally, for an order quashing the planning permission and, obviously, my Lord has just dealt with costs.
THE DEPUTY JUDGE: Yes, and indeed you have your order.
MR JONES: Yes, that must be right. My Lord, could I just raise one matter, just in respect of the clarification on the transcript. There is a stenographer recording it, otherwise I would say that I could type a note and seek to agree it with my learned friend, but if it is -- now that I have stood up I can see that there is a stenographer so I need not trouble your Lordship.
THE DEPUTY JUDGE: Very well.