QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|Pertemps Investments Limited||Claimant|
|- and -|
|Secretary of State for Communities and Local Government|
|Solihull Metropolitan Borough Council||Defendants|
Mr Richard Kimblin (instructed by the Treasury Solicitor) for the First Defendant
Hearing date: 22 May 2015
Crown Copyright ©
Mr Justice Lindblom:
"The proposed development represents inappropriate development as it is located in the Green Belt. The very special circumstances advanced do not clearly outweigh the substantial harm to openness, character and function of the Green Belt. The proposed development is therefore … contrary to Policy C2 of the Solihull UDP and emerging policy P17 of the draft Solihull Local Plan and advice contained in the National Planning Policy Framework ["the NPPF", published in March 2012]."
The issues for the court
(1) whether in his consideration of the Green Belt issue the inspector misinterpreted and misapplied Policy P17 of the Solihull Local Plan (ground 1); and
(2) whether he failed to have regard to the council's decision in March 2014 to grant planning permission for development on Jaguar Land Rover's site at Damson Parkway, Solihull, and whether he determined Pertemps' appeal inconsistently with that decision (ground 2).
"The Council will support and encourage the development of Jaguar Land Rover within its boundary defined in this Local Plan. This will include a broad range of development needed to maintain or enhance the function of Jaguar Land Rover as a major manufacturer of vehicles. The reasonable expansion of the site into the Green Belt will be given positive consideration where economic need can be demonstrated and appropriate mitigation can be secured."
In the text explaining Policy P1, paragraph 7.2.18 states:
"The Council will continue to support the further development and modernisation of the vehicles plant in order to enable its continued success in the competitive global vehicles market. Land Rover is constrained in terms of its ability to expand by its location within the main urban area. To reflect this and having regard to the vital importance of Jaguar Land Rover to the region's economy and to job creation, Policy P1 enables positive consideration to its reasonable expansion into the green belt subject to demonstration of economic needs and appropriate mitigation measures."
Paragraph 7.2.19 acknowledges that "[this] principle is also reflected in Policy P17 that enables the reasonable expansion of established businesses into the green belt where the proposal would make a significant contribution to the local economy or employment, including for example, Whale Tankers at Ravenshaw Lane that has aspirations to further develop its site".
"The Council will not permit inappropriate development in the Green Belt, except in very special circumstances. In addition to the national policy, the following provisions shall apply to development in the Borough's Green Belt:
- Development involving the replacement, extension or alteration of buildings in the Green Belt will not be permitted if it will harm the need to retain smaller more affordable housing or the purposes of including land within the Green Belt.
- Limited infilling will not be considered to be inappropriate development within the Green Belt settlements, providing this would not have an adverse effect on the character of the settlements. Limited infilling shall be interpreted as the filling of a small gap within an otherwise built-up frontage with not more than two dwellings.
- The reasonable expansion of established businesses into the Green Belt will be allowed where the proposal would make a significant contribution to the local economy or employment, providing that appropriate mitigation can be secured.
- Where the re-use of buildings or land is proposed, the new use, and any associated use of land surrounding the building, should not conflict with, nor have a materially greater impact on, the openness of the Green Belt and the purposes of including land in it, and the form, bulk and general design of the buildings shall be in keeping with their surroundings.
- Where waste management operations involving inappropriate development are proposed in the Green Belt, the contribution of new capacity towards the treatment gap identified in the Borough may amount to very special circumstances, providing the development accords with the waste management policy of this Plan."
The third part of the policy explains that outside the inset boundaries of the small settlements of Hampton-in-Arden, Hockley Heath, Meriden and Catherine de Barnes, which are "inset" in the Green Belt, "strict Green Belt policies will apply". The site of Pertemps' proposed development is outside the inset boundary for Meriden.
"Green Belt policy is set out in the national policy and will apply across the whole of the rural area of the Borough, other than the inset areas around settlements and other major developments. National policy makes clear that established Green Belt boundaries should be altered only in exceptional circumstances and only when a local plan is being prepared or reviewed. It also describes the circumstances when built and other development should be considered as an exception to inappropriate development."
Paragraph 11.6.4 refers to the "pressure on the Green Belt in Solihull" and identifies the factors which have "intensified" that pressure, including "local requirements for employment land". Paragraph 11.6.7 says this:
"The policy is consistent with national Green Belt policy, but provides some further guidance for a limited number of exceptions to inappropriate development that are particularly relevant in Solihull. These include the need to ensure that the replacement, extension and alteration of buildings, does not harm the need to retain smaller more affordable housing. A number of established businesses are located within or adjacent to the Green Belt in Solihull, such as Jaguar Land Rover and Whale Tankers. The reasonable expansion of such businesses into the Green Belt will be allowed where justified by a significant contribution to the local economy or employment."
The text goes on to explain other elements of Policy P17, including the provision for "[limited] infilling in villages, identified as appropriate development in the Green Belt in the NPPF" (paragraph 11.6.8); the provision for "[the] re-use of permanent and substantial buildings in the Green Belt", which is said to be "not inappropriate development" (paragraph 11.6.9); and the provision relating to additional waste facilities, which is said to be "consistent with guidance in the NPPF but makes clear that the contribution towards new waste management capacity in the Borough may amount to very special circumstances, provided the development accords with the waste management policy [namely, Policy P12] in this plan" (paragraph 11.6.10).
Green Belt policy in the NPPF
"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."
Paragraph 89 specifies categories of development which local planning authorities should not regard as "inappropriate" in the Green Belt. It states:
"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
- buildings for agriculture and forestry;
- provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
- the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
- the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
- limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or
- limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development."
Paragraph 90 says that "[certain] other forms of development are also not inappropriate in the Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt". These are "mineral extraction", "engineering operations", "local transport infrastructure which can demonstrate a requirement for a Green Belt location", "the re-use of buildings provided that the buildings are of permanent and substantial construction", and "development brought forward under a Community Right to Build Order".
The Jaguar Land Rover planning permission
"Despite the policy support within Policies P1 and P17 of the Local Plan, the application proposals nevertheless provide for inappropriate development on Green Belt [land]. … The applicant has therefore presented its very special circumstances to justify the application proposals and in doing so seek to ensure that in the planning balance the harm to the Green Belt and its openness is outweighed by the economic and public benefits that this proposal seeks to bring."
The officer then went on to consider the very special circumstances put forward by Jaguar Land Rover. Under the heading "Summary to Very Special Circumstances" he said:
"Policy support for this development is given by Local Plan policies P1 and P17 as well as paragraphs that deal with sustainable economic development within the NPPF at paragraphs 19, 20 and 21.
JLR provides a compelling case when considering its economic importance at local, regional, national and international level. JLR currently employs 6,000 manufacturing people with another 1,700 jobs created throughout 2014 and 2015. "
Concluding his report, the officer said this:
"… There is clear policy support for development outside of the existing plant provided within Policy P1 and P17 of the Solihull Local Plan and the NPPF at paragraphs 19, 20 and 21 makes explicit the Government's commitment to securing economic growth and to ensuring that the planning system does everything it can to support sustainable economic growth.
The development represents inappropriate development and there is harm by definition, harm to the openness of the Green Belt and harm to the purposes of including land in the Green Belt. This represents a substantial level of harm. In favour of the development is the policy support to assisting economic growth and the recognition that JLR has a vital importance to the region's economy. It is considered that these factors are sufficient to outweigh the harm of the development in the balancing exercise.
The evidence and submissions in Pertemps' appeal
"It is accepted that the development constitutes inappropriate development in the green belt and that very special circumstances therefore need to be demonstrated."
In paragraph 5.8 he referred to the provision in Policy P17 which, he said, "clearly states that the expansion of established businesses may be acceptable in the green belt providing the proposal would make a significant contribution to the local economy or employment". Then he said:
"This, to me, appears to be a very reasonable recognition that in certain circumstances an existing established business which needs to 'expand' in the green belt should be allowed to do so if it makes a 'significant' contribution to the local economy and employment. I submit that those circumstances clearly apply in this case and that this proposal must benefit from this reflection of national policy which encourages economic growth."
He went on to say (in paragraph 5.12):
"Whether policy P17 should be considered as a vsc as opposed to simply a demonstration of compliance with green belt policy is a moot point; however, if needs be I submit it as a vsc. I submit the following considerations should also be considered as vsc's as part of a comprehensive submission".
These considerations were: (1) the "need for a new building at this site … detached from the main [Meriden] Hall", (2) the unsuitability of Meriden Hall for present day working needs and the sustainability of the proposed development, (3) Pertemps' "clear preference" for this development rather than an extension of Meriden Hall, (4) the assertion that "[no] other locations in the area are suitable" for it, (5) the assertion that the development, being sited on a "presently open surface car park", would have only a "very limited" impact on the openness of the Green Belt and (6) that it would be an "enhancement of the setting" of Meriden Hall as a listed building, (7) the unlikelihood of any other company buying the site and "providing the same level of care and attention" in maintaining Meriden Hall and its grounds if Pertemps were to leave, (8) the prospect of the Pertemps' "contribution to the local economy" being lost if it was "required to re-locate from the area", and (9) the contention that the proposal was not in conflict with any of the five purposes of the Green Belt set out in the NPPF (paragraphs 5.13 to 5.21). Mr Jones said that these "arguments" were "all submitted as very special circumstances which should outweigh the green belt policy objection" (paragraph 5.22). In section 6, "Conclusions", Mr Jones returned to Policy P17. In paragraph 6.2 he acknowledged that the council regarded the proposed development as "inappropriate development" and that "very special circumstances" must therefore be demonstrated. He went on to say this:
"Our submission is that this scheme complies with [Policy P17] and as such, this overrides the green belt presumption against new building in the green belt and thus should be acceptable in policy terms. The NPPF provides additional support for a scheme of this nature, stating at para.19 that 'significant weight' should be placed on the need to support economic growth through the planning system, and that planning should operate to encourage not act as an impediment to sustainable economic growth."
and in paragraph 6.3:
"However, if this argument is not accepted, then the existence of policy P17 must be counted as one of the very special circumstances which then need to be demonstrated."
"A new stand-alone office building … does not come within the list of potentially acceptable development set out in Policy P17 of the Solihull Local Plan. It is, therefore, inappropriate development in the Green Belt. …".
The proposal did "not accord with the categories of potentially acceptable development in paragraph 89 of the NPPF" (paragraph 6.1.5). This was "inappropriate development in the Green Belt", and, in the light of paragraphs 87 and 88 of the NPPF, it was "by definition harmful to the Green Belt" (paragraph 6.1.6). Very special circumstances capable of outweighing "the general presumption against inappropriate development" were therefore required (paragraph 6.1.7). Neither "taken singularly [nor] cumulatively" did the very special circumstances advanced by Pertemps "clearly outweigh the harm caused by inappropriateness and any other harm" (paragraph 6.3.8). "Overall", the proposal was "clearly contrary to Policy P17 of the adopted Solihull Local Plan, and the NPPF" (paragraph 6.3.9).
The inspector's decision letter
"5. The appeal site lies within the West Midlands Green Belt. Paragraph 88 of the National Planning Policy Framework (NPPF) requires that substantial weight should be given to any harm to the Green Belt which, by definition, includes inappropriate development, and states that such development should not be approved except in very special circumstances. With a limited number of exceptions (paragraph 89), the NPPF regards the construction of new buildings as inappropriate development in 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.
6. At the Hearing, the appellant acknowledged that the proposed house [sic] would be inappropriate development in the Green Belt, as defined by the NPPF. However, with regard to the Solihull Local Plan (LP) adopted in December 2013, it invited a different interpretation. Policy P17 mirrors the NPPF with regard to inappropriate development, but adds that, in addition to national policy … the reasonable expansion of established businesses into the Green Belt will be allowed where the proposal would make a significant contribution to the local economy or employment … . Supporting paragraph 11.6.7 states that the policy is consistent with national Green Belt policy but provides some further guidance for a limited number of exceptions including the reasonable expansion of established businesses where justified, as above. While I accept that there is some tension between this wording and the NPPF, given that LP policy P17 must, as it states, be consistent with national policy, I find that it can only refer to the other exceptions in NPPF paragraph 89 rather than new buildings. The proposal would therefore conflict with LP policy P17.
7. In any event, the appellant put forward the particulars of, and need for, the proposed building as very special circumstances. These included: the appellant's operational and business requirements for a new building at this site; why the Hall is unsuitable and no longer fit for purpose; why no other location would be suitable; how it would create jobs elsewhere; that the appellant['s] business is the only way to sustain the listed building; that the business would otherwise be likely to move (with implications for the site); and that through hiding the existing car parking with appropriate landscaping and a turfed roof, the scheme would enhance the appearance of the Green Belt.
8. I acknowledge that the appellant company is unusual in that it is a major employer in the UK, has an unusually strong requirement for a high quality corporate image, and has shown considerable commitment for the wellbeing of the listed building and its immediate grounds. I saw for myself that the number of people working in the Hall, while not necessarily unusual for many service businesses, is not compatible with the appellant's commitment to its staff. While I agree with the Council that it would be possible for the business to operate without the proposed building, I accept that it would be undesirable for the business and so for the local and wider economy. Taken together, I give substantial weight to these factors.
9. On the other hand, businesses frequently need to expand and there was little evidence that another business would not be interested in occupying and maintaining the building and park to a similar standard without the need for inappropriate development in the Green Belt. While mitigation has been put forward that could reduce the impact of the new building, a lack of harm cannot contribute to very special circumstances.
10. On this issue, I find that substantial weight should be given to both the harm, by definition, to the Green Belt and to the benefits to the business and the local economy as other considerations. However, for very special circumstances to exist, the NPPF requires that the former should be clearly outweighed. On the evidence before me, my judgement is that the appellant's circumstances are not so unusual as to be very special or to reach the high hurdle of clearly outweighing the substantial harm by definition. I therefore conclude that the scheme would conflict with the NPPF and with LP policy P17."
"… [The] scheme would amount to inappropriate development in the Green Belt. The potential benefits of the scheme would not clearly outweigh the harm to the Green Belt and so very special circumstances do not arise. The scheme would be contrary to the NPPF and would conflict with LP policy P17. The lack of harm, on balance, with regard to the above issues does not weigh in its favour. For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed."
Ground 1 – the inspector's interpretation and application of Policy P17
"… Paragraph 89, as its opening sentence makes clear, lays down a general rule that the construction of new buildings in the Green Belt is inappropriate development: "building" for this purpose has the wide meaning given by section 336 of the Town and Country Planning Act 1990 … . The various bullet points are exceptions to that general rule and are therefore likewise concerned only with the construction of new buildings. …".
Richards L.J. accepted (at paragraph 31) that paragraphs 89 and 90 of the NPPF "are properly to be read as closed lists". Paragraph 89, he said, "states the general rule that the construction of new buildings is inappropriate development and sets out the only exceptions to that general rule". Paragraph 90 "sets out other forms of development … that are appropriate provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt". Richards L.J. did "not think that the NPPF gives any scope to local planning authorities to treat development as appropriate if it does not fall within paragraph 89 or paragraph 90". Mitting J. differed from Richards L.J. on the interpretation of paragraph 90, but not on the proper construction of paragraph 89 (paragraphs 41 to 43). Tomlinson L.J. preferred to leave the interpretation of paragraph 90 for a case where it had to be decided (paragraph 40). This is not that case.
Ground 2 – inconsistency
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. …".