Fordent Holdings Ltd v (1) Secretary of State for Communities and Local Government (2) Cheshire West and Chester Council (Interested Party)

Hearing date: 13 September 2013

HH Judge PellingQC:

Introduction

This is the hearing of an application by the Claimant ("FHL") under s.288 of the Town and Country Planning Act 1990 ("TCPA") for an order quashing a decision of a planning inspector ("the Inspector") appointed by the Defendant ("SoS") by which the Inspector dismissed an appeal under s.78 TCPA against a refusal of the Interested Party ("the Council") to grant outline planning permission for a change of use for a 9 Hectare site located wholly within the Designated Green Belt known as Rose Manor Farm, Warrington Road, Mickle Trafford, Chester ("the Site") from agricultural use to a caravan and camping site to accommodate up to 120 touring caravans and up to 60 tent pitches on a mixture of grass and hard standing together with the construction of a shop, reception and office building of 303 sq. metres and three separate amenity blocks of 170, 141 and 136 sq. metres respectively ("the Scheme"). The Site comprises several agricultural fields and is located between the A 56 and the Chester to Manchester rail line. Part of Route 5 of the National Cycle Network runs along the southern border of the Site.

The hearing took place in Manchester on 13 ^th September 2013. At the end of the hearing, I agreed to determine all post judgment issues in writing providing all parties signified their consent to this course and submitted written submissions or an agreed form of order in accordance with directions that I said I would include in the draft judgment. Those directions appeared in the final paragraph of the draft of this judgment although I have omitted them from the judgment as has been handed down.

Background

There is no dispute as to the material background facts. The application for planning permission was refused by the Council by a decision dated 26 March 2012 because:

"The Site lies within the designated green belt. The proposal represents inappropriate development as defined by Planning Policy Guidance Note 2, that would cause harm to the Green Belt by reason of inappropriateness, harm to the purposes of including land within the Green Belt by reason of encroachment of development into the countryside, harm to its openness, and harm to its visual amenities. Inadequate information has been submitted to demonstrate that very special circumstances exist to outweigh the harm caused by these impacts. As such the proposals would be contrary to the provisions of PPG2 and policies ENV24, ENV63 and EC18 of the Chester District Local Plan.

The decision refusing planning permission was issued on the day before the publication of the National Planning Policy Framework ("NPPF"). It is common ground however that the NPPF applied to the appeal that followed the refusal because the policies contained in the NPPF applied from the date of its publication – see Annex 1, Paragraph 208 — and that PPG2 ceased to apply by reason of it having been replaced by the NPPF – see NPPF, Annex 3, Paragraph 3.

The appeal decision was preceded by a pubic inquiry that was held on the 7, 8 and 13 March 2013, and a site visit that took place on 13 March 2013. The decision to dismiss the appeal was taken on, and is contained in, a decision letter ("DL") dated 21 May 2013. In summary the Inspector concluded that the proposed change of use and operational development in connection with the proposed change of use constituted inappropriate development, that therefore very special circumstances were required to be demonstrated before the proposed development could be permitted and that such circumstances did not exist because the harm to the green belt that would be caused by the development was not clearly outweighed by the material considerations in favour of the Scheme.

Policy Framework

The key purpose of the NPPF is identified in Paragraph 6 as being "… to contribute to the achievement of sustainable development." This concept is further defined in Paragraph 7 in these terms:

"There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:

• an economic role– contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;

• a social role– supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community's needs and support its health, social and cultural well-being; and

• an environmental role– contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy."

The need to focus on all of these requirements rather than one at the expense of another is emphasised by Paragraph 8 and at Paragraph 10 the need to take local circumstances into account is emphasised. The presumption in favour of sustainable development is described as a " golden thread" which at Paragraph 14 is said to mean:

"For decision-taking this means: ^FN10

…

where the development plan is absent, silent or relevant policies are out of date, granting permission unless:

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

specific policies in this Framework indicate development should be restricted.^FN9"

Footnotes 9 and 10 state:

"9. For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.

[Emphasis supplied]

10. Unless material considerations indicate otherwise."

In relation to economic growth, Paragraphs 18 and 19 of the NPPF provide:

"18. The Government is committed to securing economic growth in order to create jobs and prosperity, building on the country's inherent strengths, and to meeting the twin challenges of global competition and of a low carbon future.

19. The Government is committed to ensuring that the planning system does everything it can to support sustainable economic growth. Planning should operate to encourage and not act as an impediment to sustainable growth. Therefore significant weight should be placed on the need to support economic growth through the planning system."

Chapter 9 of the NPPF sets out the current national policy in relation to the protection of the Green Belt. The aim and purposes of the Green belt are set out in Paragraphs 79 and 80 in these terms:

"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

80. Green Belt serves five purposes:

• to check the unrestricted sprawl of large built-up areas;

• to prevent neighbouring towns merging into one another;

• to assist in safeguarding the countryside from encroachment;

• to preserve the setting and special character of historic towns; and

• to assist in urban regeneration, by encouraging the recycling of derelict and other urban land."

Planning Policy in relation to development in the Green Belt as set out in Paragraph 81 is to "… plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities for outdoor sport and recreation; to retain and enhance landscapes, visual amenity and biodiversity; or to improve damaged and derelict land."

As to the Green Belt's relationship with development, Paragraphs 87–90 in so far as they are material to this case provide that:

"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. 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.

89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

…

• provision of appropriate facilities for outdoor sport, outdoor recreation...