Alison Hook v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Peter Jackson,Lady Justice Asplin |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWCA Civ 486 |
| Docket Number | Case No: C1/2018/2727 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2020 |
[2020] EWCA Civ 486
IN THE COURT OF APPEAL (CIVIL DIVISION)
MR DAVID ELVIN Q.C. (sitting as a deputy judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Peter Jackson
and
Lady Justice Asplin
Case No: C1/2018/2727
Mr Ashley Bowes (instructed by Leigh Day) for the Claimant
Mr Cain Ormondroyd (instructed by the Government Legal Department) for the First Defendant
Mr Ned Westaway (instructed by Surrey Heath Borough Council) for the Second Defendant
Hearing date: 28 January 2020
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
In an appeal against the refusal of planning permission for the retention of a “dwelling”, did the inspector err in law in concluding that the “dwelling” was not a “[building] for agriculture” and was thus “inappropriate development” in the Green Belt – despite it being suggested by the appellant that a condition could be imposed to restrict its occupancy to a person working in agriculture on the land? That is the central question in this case. It does not involve any new issue of law.
Under section 288 of the Town and Country Planning Act 1990, the claimant, Ms Alison Hook, applies for an order to quash the decision of an inspector appointed by the first defendant, the Secretary of State for Communities and Local Government (now the Secretary of State for Housing, Communities and Local Government), to determine her appeal under section 78 of the 1990 Act against the decision of the second defendant, Surrey Heath Borough Council, to refuse planning permission for development at “Hookmeadow”, Philpot Lane, in Chobham. The site is in the Metropolitan Green Belt, in open countryside outside the settlement boundary. The application for planning permission had been made, in part, under section 73A of the 1990 Act. The development was described in the council's decision notice as the “[erection] of an occupational [worker's] dwelling ancillary to use of the land for horticultural and agricultural purposes (retrospective), and erection of a single storey extension to form [an] enlarged bedroom”. The inspector conducted a hearing and undertook a site visit on 20 June 2018. His decision letter is dated 6 July 2018. In a separate decision, also dated 6 July 2018, he refused Ms Hook's application for an award of costs against the council.
Permission to proceed with the application under section 288 was twice refused in the court below: initially by Lang J. on the papers on 2 October 2018, and again by Mr David Elvin Q.C., sitting as a deputy judge of the High Court, at a hearing on 7 November 2018. Ms Hook applied to this court for permission to appeal. On 11 June 2019, I granted permission to apply for “planning statutory review” under CPR r.52.10(5), and under CPR r.52.10(6) ordered that the application would be determined in this court.
The issues before the court
Three issues arise from the grounds of the application: first, whether the inspector, when he concluded that the development was “inappropriate development” in the Green Belt under national planning policy, failed to have regard to the agricultural occupancy condition for which Ms Hook contended (ground 1); second, whether he acted in breach of the rules of natural justice when he rejected that condition in his decision on the application for costs (ground 2); and third, whether he failed to provide lawful reasons for rejecting it (ground 3).
Government policy for the Green Belt
At the time of the inspector's decision, the Government's planning policy for England was contained in the National Planning Policy Framework, published in 2012 (“the NPPF”). Policy for the Green Belt was set out in section 9, “Protecting Green Belt land”. Paragraph 79 said that “the essential characteristics of Green Belts are their openness and their permanence”. Paragraph 87 said that “… inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances”. The policy in paragraph 88 was that, “[when] considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt”, and 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”. Paragraph 89 said that “[a] local planning authority should regard the construction of new buildings as inappropriate in [the] Green Belt”, but identified six exceptions. The first exception was “buildings for agriculture and forestry”. That exception re-appeared in identical terms in the corresponding policy in the revised version of the NPPF published in July 2018 (in paragraph 145), and again in the replacement version published in February 2019 (in paragraph 145).
The meaning of these policies, and their predecessors, has been considered by the courts on a number of occasions (see, in particular, the judgments given in this court in R. (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404; [2016] Env. L.R. 30 and Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466; [2017] 2 P. & C.R. 1, both recently cited with approval by the Supreme Court in R. (on the application of Samuel Smith's Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3).
From the relevant cases, some basic points emerge:
(1) The concepts referred to in NPPF policy for the Green Belt – “inappropriate development”, “very special circumstances”, the preservation of the “openness” of the Green Belt, the impact of development on “the purposes of including land within it”, and so on – are not concepts of law. They are broad concepts of planning policy, used in a wide range of circumstances (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13; [2012] 2 P. & C.R. 9, at paragraph 19). Where a question of policy interpretation properly arises, understanding those concepts requires a sensible reading of the policy in its context, without treating it as if it were a provision of statute. Applying the policy calls for realism and common sense.
(2) In dealing with the “threshold” question of whether a proposal is for “inappropriate development” in the Green Belt, and then in deciding whether the proposal is acceptable and ought to be given planning permission, the decision-maker must establish relevant facts and exercise relevant planning judgment. If called upon to review the decision, the court will not be drawn beyond its limited role in a public law challenge (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780G-H). The interpretation of planning policy falls ultimately within that role, but the decision-maker's application of policy will only be reviewed on traditional public law grounds (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 and 19). As this court has emphasized more than once, excessive legalism must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 893, [2018] P.T.S.R. 88, at paragraph 50). The court will not second-guess the decision-maker's findings of fact unless some obvious mistake has occurred, nor interfere with the decision-maker's reasonable exercise of planning judgment. But if an error of law is demonstrated – such as a misinterpretation of relevant policy leading to a failure to exercise a planning judgment required by that policy – its duty is to act.
(3) The nature of the decision-maker's task will differ from one kind of development to another. For example, whether a proposal is for “buildings for agriculture and forestry” – the first category of “new buildings” that are not to be regarded as “inappropriate development” under the policy in paragraph 89 of the NPPF – will be largely if not wholly a matter of fact. There is no proviso in that category (see Lee Valley, at paragraph 19). By contrast, assessing whether a proposed “[facility] for outdoor sport” – the second category in paragraph 89 – would “preserve the openness of the Green Belt” is largely a matter of planning judgment. The same applies to proposals for “mineral extraction” or “engineering operations” – two categories of “other forms of development” that are potentially “not inappropriate” under the policy in paragraph 90, which are subject to the same proviso. The requisite planning judgment will turn on the particular facts. It is not predetermined by the general statement in paragraph 79 that one of the “essential characteristics” of Green Belts is their “openness” – meaning, in that context, the mere presence of buildings, regardless of any visual impact they might have (see Lee Valley, at paragraph 7). In the context of a development control decision, as Sales L.J. observed in Turner (at paragraph 14), “[the] word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case”, and (at paragraph 15) “[the] question of visual impact is implicitly part of the concept of the “openness of the Green Belt” as a...
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