"Any other harm" not restricted to green belt harm when considering whether "very special circumstances" exist, says Court of Appeal

Out-Law News | 28 Oct 2014 | 5:01 pm | 3 min. read

A planning inspector was correct to include harm other than harm to the green belt in the planning balance, when deciding that "very special circumstances" did not exist to justify plans for inappropriate development in the green belt, the Court of Appeal has ruled .

Aviation company Redhill Aerodrome Limited (RAL) submitted plans to Tandridge District Council and Reigate and Banstead Borough Council in July 2012, for the replacement of three grass runways at Redhill Aerodrome in the Surrey green belt with a single, hard-surfaced runway. When the plans were rejected, RAL appealed to the Planning Inspectorate.

Planning inspector Diane Lewis dismissed RAL's appeal, deciding that the proposals constituted inappropriate development on green belt land and that the "very special circumstances" required for the approval of such development under UK government planning policy did not exist. Paragraph 88 of the National Planning Policy Framework (NPPF) says that "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".

In her decision letter (28-page / 246 KB PDF), Lewis interpreted the words "and any other harm" in paragraph 88 to mean any harm relevant for planning purposes, and included factors unrelated to the green belt in the planning balance against allowing the proposals. This approach accorded with that taken in a key judgment under previous planning policy. The inspector said that she had followed the previous judgment because the wording in the NPPF was "very similar" to that in the superseded policy, and that "this approach is reflected in decisions by the secretary of state since the publication of the NPPF".

In July, a High Court judge allowed an appeal against the planning inspector's decision, concluding that "it was not right [of Lewis] to take the identified non-green belt harms into account". The judge said that there had been "a considerable policy shift" between the superseded policy and the NPPF and that the judgment followed by the planning inspector "was taken in a different policy context where there was greater scope for flexible interpretation".

Lords Justices Sullivan, Tomlinson and Lewison overturned the High Court judgment earlier this month, deciding that the approach of the planning inspector to the definition of "any other harm" had been correct. In his leading judgment, Lord Justice Sullivan said that the NPPF did not represent a significant change in green belt policy, noting that while "the text of the policy has been reorganised ... all of its major characteristics ... remain the same".

In relation to paragraph 88 of the NPPF, Lord Justice Sullivan noted that: "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 the green belt it is careful to say so in terms."

Lord Justice Sullivan was critical of the approach of the High Court judge, who had appeared to say that, while certain non-green belt factors could be taken into consideration in a "very special circumstances balancing exercise" when they weighed in favour of the proposed development, they should be ignored if they weighed against it.

"I accept the appellants' submission that this imbalance is illogical", said the appeal judge. "If all of the 'other considerations' in favour of granting permission, which will, by definition, be non-green belt factors, must go into the weighing exercise, there is no sensible reason why 'any other harm', whether it is green belt or non-green belt harm, should not also go into the weighing exercise."

Lord Justice Sullivan rejected RAL's argument that, by taking into account less than severe transport harm in her consideration of whether to refuse the application on green belt grounds, the planning inspector had "cheated" the applicant of the benefit of a policy within the NPPF.

Paragraph 32 of the NPPF says that development "should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe".  However, the appeal judge said that, regardless of whether or not an individual harm crossed a threshold for refusal on its own grounds, it could be a "material consideration" included in the balance when deciding whether the proposal should be refused due to harm to the green belt.

Lords Justice Tomlinson and Lewison agreed with Lord Justice Sullivan.