England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th November 2004

THE HONOURABLE MR JUSTICE OWEN :

1. The claimant is the owner of a property known as the Old Mushroom Farm, Robin Hood Way, Lamins Lane, Bestwood, Nottingham (the site). On 28^th March 2002 she made an outline application for planning permission for the residential development of the site to the second defendant, Gedling Borough Council. The council refused planning permission on 13^th March 2003, and the claimant appealed against the refusal. The appeal was determined on written representations, and was dismissed by the inspector appointed to determine it in a decision letter dated 6^th February 2004. The claimant now seeks an Order quashing the inspector's decision under section 288 of the Town and Country Planning Act 1990.
2. The site consists of 6.17 acres of land within the Nottingham green belt. It was in use as a mushroom farm from the end of the Second World War until the late 1980's. There are a number of derelict single storey buildings on the site. Their footprint totals approximately 0.53 acres; and they are surrounded by an area of hard standing extending to over one and a half acres. The site is contaminated in that the buildings contain approximately 3,000 m² of asbestos in various forms in their structure and infra-structure. Removal of the asbestos will be costly; and the claimant cannot afford to undertake the necessary work without generating funds from the development of the site; hence her application for planning permission.
3. The application was for outline planning permission for residential development. It was acknowledged in the supporting information that the development was inappropriate in the green belt, but it was submitted that there were 'very special circumstances' justifying an exception to the normal presumption against inappropriate development in the green belt, namely that the development was necessary to fund the cost of decontaminating the site.
4. Although the application was submitted in outline, the supporting material made it clear that the claimant sought to establish the principle of development reflecting the footprint of the existing buildings, namely an overall footprint of 2,141 m². At the request of the claimant the council deferred consideration of the application to enable the claimant to submit additional information; and in December 2002 the council received a statement from the claimant's planning consultants indicating that the proposed development comprised 8 five bedroomed detached properties, 2.5 storeys in height. On 28^th February 2003, and following further consultation with the Nottinghamshire County Council and the Environment Agency, the consultants wrote indicating the claimant's willingness further to amend her application by limiting the number of the dwellings proposed on the site to five 4/5 bedroom dwellings "… which typically would result in a footprint of 175 sq. metres each (total footprint of 875 sq. metres or a total floor space of 1,750 sq. metres, which is substantially less than the existing mushroom farm building."
5. The application was refused by the Council for five reasons, namely –

i) The proposal was contrary to development planned policies relating to development in the green belt

ii) The proposal was detrimental to the openness of the green belt

iii) The proposal was detrimental to pedestrian and highway safety

iv) The discharge of sewage from the development was likely to cause contamination of ground water

v) The proposal was contrary to the aims of sustainable development, as expressed in PPGs 3 and 13, and would increase reliance on the private car.

The inspector addressed each of the reasons for refusal. He rejected reasons (iii) and (iv) but upheld the council's decision in relation to reasons (i), (ii) and (v). The claimant does not seek to challenge the inspector's findings in relation to reason (v). Her challenge is directed to his conclusions in relation to reasons (i) and (ii), the 'very special circumstances' issue, and the openness of the green belt issue

6. The 'very special circumstances' issue.

At paragraphs 5 – 9 of the Decision the inspector summarised the evidence as to the contamination of the site. In November 2001 the Health & Safety Executive had strongly recommended that the asbestos containing materials (ACMs) be removed from the site and disposed of safely, and in November 2002 the council's Environmental Health Officer had strongly recommended that works be undertaken to make the site safe. Concerns had also been expressed by the Nottinghamshire Fire & Rescue Service and by the Environmental Health Officer following two fires at the site apparently lit by trespassers. The Fire Safety Station Officer considered there to be a significant risk to fire crews when attending incidents at the appeal site and would like to see the demolition of the buildings.

7. The inspector noted that the buildings on the site would continue to deteriorate, and that asbestos fibres would continue to be released and to be a hazard to persons gaining access to the site, in particular to trespassers. He concluded that fencing of the entire site would be expensive and impracticable. He also noted that the council's Head of Planning and Environment had acknowledged the claimant's extensive efforts to find an appropriate land use for the site without success, but "did not accept that the only way of achieving a clean up of the site is to grant planning permission for eight dwellings." At paragraph 9 he concluded that there appeared to be no obvious appropriate green belt use that would ensure the removal of the asbestos hazard.
8. His conclusions as to the 'very special circumstances' issue are contained in paragraphs 10 and 11 of the decision letter –

"10. The re-development of this previously developed land for residential purposes could provide the necessary resources to fund the remediation, and para. 20 of Annexe 1 – Circular 02/2000 acknowledges that the regeneration process is dealing with much of the inherited legacy of contaminated land. However, it is also clear from the advice in that paragraph that the fact that contamination on a site is causing unacceptable risks is not justification in itself for undertaking development that is either unsuitable or not scheduled, and specific reference is made to green belt land in this context.

11. I conclude that while it would be in the general public interest to deal with the risk associated with the presence of ACMs on this site, the presence of contamination does not amount to such an unusual situation as to constitute the very special circumstances sufficient to set aside the presumption against inappropriate development in the green belt. The proposal is therefore contrary to Policy P2 of the GLP and the Policy 3/2 of the NSP. It is also contrary to Policy ENV 26 of the emerging RLP."

9. Before addressing the claimant's challenge to the inspector's conclusion it is necessary to consider the relevant policy framework. Government policy on different aspects of planning is set out in Planning Policy Guidance notes (PPGs). Local Planning authorities are obliged to take their content into account when preparing their development plans; but such guidance may also be material to decisions on individual planning applications and appeals. PPG 2 sets out policy in relation to green belts. Section 3 is directed to '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. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.

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."

10. Annexe E to PPG 2 gives further guidance as to development within the green belt by reference to other PPGs and Circulars. It does not contain any reference to Circular 02/2000, the circular containing guidance as to contaminated land.
11. The purpose of Circular 02/2000 is set out in its paragraph 3 –

"This circular has two functions: first it promulgates the statutory guidance which is an essential part of the new regime; secondly, it sets out the way in which the new regime is expected to work, by providing a summary of Government policy in this field, a description of the new regime, a guide to the regulations and a note on the saving provision in the Commencement Order."

The summary of Government policy is contained in Annexe 1. Paragraphs 16 – 24 are headed "Action to Deal with Contamination". The section is divided into two parts, paragraphs 16 – 19 are headed "VOLUNTARY REMEDIATION ACTION", paragraphs 20 – 24 "REGULATORY ACTION". The paragraph to which the inspector made express reference in paragraph 10 of the Decision Letter is in the following terms –

"20. The regeneration process is already dealing with much of our inherited legacy of contaminated land. But there will be circumstances where contamination is causing unacceptable risks on land which is either not suitable or not scheduled for redevelopment. For example, there may be contamination on sites now regarded as Green Belt or rural land, or contamination may be affecting the health of occupants of existing buildings on the land or prejudicing wild life on the site or in its surroundings. We therefore need systems in place both to identify problem sites of this kind and, more significantly, to ensure that the problems are dealt with and the contamination remediated. "

12. There are two limbs to the claimant's challenge to the inspector's decision on this issue. First it is submitted that he wrongly interpreted the advice in paragraph 20 of circular 02/2000 as meaning that the fact that contamination is causing unacceptable risks on land cannot in itself amount to the very special circumstances required to justify inappropriate development in the green belt, Secondly he mounts a reasons challenge, arguing that the Inspector failed to give any or any adequate reasons for rejecting the argument that the contamination of the site amounted in all the circumstances to 'very special circumstances' justifying development of the site.
13. As to the first Mr Findlay submits that the inspector appears to have approached the guidance in Circular 02/2000 on the basis that contamination of a site cannot amount to 'very special circumstances' sufficient to set aside the presumption against inappropriate development in the Green Belt in the absence of some other factor. He submits that if that analysis of the second sentence in paragraph 10 of the Decision Letter is correct, then that was plainly a misreading of paragraph 20 of Circular 02/2000.
14. Paragraph 20 of Circular 02/2000 relates to regulatory action, and not with voluntary remediation action with which this case is concerned. It gives guidance as to the circumstances in which regulatory action may be necessary, namely where "… contamination is causing unacceptable risks on land which is either not suitable or not scheduled for redevelopment." It then gives by way of example "…contamination of sites now regarded as greenbelt or rural land…" It is implicit that contaminated land may be unsuitable for development by virtue of the fact that it lies in the green belt. The Inspector was therefore justified in his observation that it was clear from the advice in paragraph 20 that the fact that contamination on a site was causing unacceptable risks, was not of itself justification for undertaking development that was unsuitable. His reference to paragraph 20 simply reflected the advice that there may be circumstances in which a contaminated site will not be suitable for development.
15. Secondly, and in any event, it is clear from the use of the phrase "on this site" in the first sentence of paragraph 11, that the Inspector was not applying a general principle that contamination could not without other factors, amount to 'very special circumstances'.
16. Thus in my judgment the Inspector neither misinterpreted nor misapplied the advice contained in paragraph 20 of Circular 02/2000.
17. The reasons challenge

Mr Findlay took as his starting point paragraph 36 of the speech of Lord Brown of Eaton-under-Haywood in South Bucks District Council v Porter (2) [2004] UK HL 33, [2004] 1 WLR 1953 –

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principle important controversial issues" disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required deepening entirely on the nature of the issues calling for decisions. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlining the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party agreed can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

18. Mr Findlay argued that in the first sentence of paragraph 11 of the Decision Letter, the Inspector acknowledges that it would be in the public interest to deal with the risk associated with the presence of ACMs on the site, but then simply asserts that the "presence of contamination does not amount to such an unusual situation as to constitute the very special circumstances sufficient to set aside the presumption against inappropriate development in the green belt." He submits that the Inspector does not make any quantitative judgment as to the level of contamination and the risks that it presents, and secondly failed completely to address or to assess the factors that weighed in the balance against the grant of planning permission, in particular the impact of the proposed development on the green belt. Mr Findlay invited me to test the validity of his submission by posing the rhetorical question - does the decision letter "… enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principle important controversial issues'"? As he put it, was it the extent of the risk that was the problem, or was it the extent of the development or both?
19. In response Mr Brown submitted on behalf of the Defendant that it is implicit in the inspector's decision that he carried out the necessary balancing exercise. He argues that the presumption against inappropriate development in the Green Belt presupposes that such development is harmful, and the Secretary of State will attach great weight to that harm, see PPG 2 para. 3.2. He submits that it is at paragraph 11 of the decision that the inspector undertakes the balancing exercise, and argues that the inspector must have weighed the harm to the Green Belt against the benefit of remediation, and found that the former was heavier than the latter. Having arrived at that conclusion that there was nothing more to be said.
20. In my judgment Mr Findlay's submissions are well founded. I do not consider that the inspector gave any adequate reasons for arriving at his conclusion. Having concluded that it was in the general public interest to deal with the risk to the public presented by the site, and there was no obvious appropriate green belt use that would ensure the removal of the asbestos hazard, he did not address the question of why the contamination of this site did not amount to 'very special circumstances'. In particular there is nothing to indicate that the Inspector took account of the impact of the proposed development in this context. There must at the least be a substantial doubt as to whether he carried out the necessary balancing exercise when addressing this issue. I bear in mind the concluding sentence of paragraph 26 of Lord Brown's speech in South Bucks DC and Porter, but I am satisfied that the claimant has been substantially prejudiced by the failure to provide an adequately reasoned decision. As Mr Findlay pointed out the claimant does not know whether he found against her as a consequence of the nature and extent of the risk presented by the contamination, or by reference to the degree of impact of the proposed development on the green belt, or both.
21. It follows that in my judgment the claimant succeeds on the first ground of her application, and the inspector's decision must be quashed.
22. That being the case it is unnecessary to address the second and subsidiary ground of challenge, namely that the inspector erred in his approach to the issue of whether the proposal would have an unacceptable impact on the openness of the green belt (paragraphs 12 and 13 of the Decision Letter). Suffice it to say that in my judgment this ground was not made out. The inspector was entitled to approach the appeal on the basis that the "… development envisaged would compromise some five or eight substantial two-storey detached houses." It was not suggested to him that he should impose a condition restricting the height of the proposed development, and in those circumstances there was no obligation upon him to give reasons for not doing so.
------------------------

MR JUSTICE OWEN: Mr Findlay, Mr Brown. You will have noted from the version of the judgment that has been given to you this morning that in fact it was not the draft that I had sent out to you both. It does not make any difference to the outcome, I hasten to say, but there was confusion between my clerk and me as to the final version. I have done some polishing which she had not appreciated when the versions came out to you.

MR BROWN: My Lord, I have not seen the final version.

MR JUSTICE OWEN: Well, you can have it now. As I say, it makes no difference to the outcome. It was essentially stylistic alterations. I wanted to alert you to it so that you are not surprised to read something which was a little different from the original version. Would you like a moment just to read it?

MR FINDLAY: My Lord, my application is that, with the decision being quashed, the first defendant pay the claimant's costs, to be assessed if not agreed, and that there be a Community Legal Services assessment of the claimant's costs in any event. My Lord, I understand those orders are not disputed.

MR JUSTICE OWEN: Yes.

MR BROWN: My Lord, that is correct. I do not dispute the principle we should pay, and as to the amount there is no application for summary assessment to be done.

MR JUSTICE OWEN: Very well.

MR BROWN: We are agreed on that. My Lord, I do however have an application for permission to appeal. I make clear that the application is based on both of the two necessary limbs, ie that we have a reasonable prospect and that there is a point of principle involved in it.

. My Lord, in making those points I start -- if I can take it from your Lordship's judgment, you have set out the quotation from South Bucks v Porter at paragraph 17 of your Lordship's judgment where in the House of Lords Lord Brown indicated that the reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. My Lord, as far as the first part of that is concerned, misunderstanding some relevant policy, your Lordship has considered whether or not the arguments that the inspector had misunderstood the policy framework in this case are correct and has found in my favour on that point. In essence, my Lord, it comes down to whether the reasons are adequate enough to demonstrate a rational decision.

Your Lordship's finding against me on that is in paragraph 20 of the final judgment, my Lord, and if I can simply take your Lordship to the last part of that where you bear in mind the concluding sentence of paragraph 26 of Lord Brown's speech. That is the one where Lord Brown indicates that prejudice has to be shown. You say you are satisfied the claimant has been substantially prejudiced. Mr Findlay points out the claimant does not know whether you found against her as a consequence of the nature of the risk or by reference to the degree of impact by the development to the green belt or both.

My Lord, in my submission, with the greatest respect to your Lordship, that is, certainly in practical terms, a distinction without difference because if one is asking whether the balance is in favour of the proposal or against it, the simple point is that in this particular case the risks were not great enough to overcome harm to the green belt. Now, whether that is because the risks are not severe enough or the harm is too great comes down to the same thing. The risk is not great enough to overcome the harm in this particular case.

My Lord, it is on that basis that I say there is a reasonable prospect but I link that also to the argument about the point in principle because in my submission, my Lord, it is, as I submitted at the hearing, very difficult to see what else it is that an inspector could say in those circumstances.

Now, my Lord, my clients still need time to take on board and digest the full consequence of what your Lordship has said and I make the application on the point of principle now as much to preserve their position as anything else, but there is concern at present that your Lordship imposed,or may well be imposing, a very difficult burden upon the inspectorate for the future in terms of explaining why one side of the scales is heavier than the other.

My Lord, those are the two related grounds on which I make the application, unless I can assist your Lordship further.

MR JUSTICE OWEN: No, thank you, Mr Brown. You will have to make your application elsewhere.

MR BROWN: My Lord.

MR JUSTICE OWEN: Very well. The decision will be quashed; the first defendant will pay the claimant's costs, to be assessed if not agreed; and Mr Findlay you may have a Legal Services assessment of your costs in any event.

MR FINDLAY: I am much obliged my Lord.

MR JUSTICE OWEN: I am most grateful to you both for your assistance.