Secretary of State for Communities and Local Government (First Appellant) Reigate and Banstead Borough Council (Second Appellant) Tandridge District Council (Third Appellant) v Redhill Aerodrome Ltd

JurisdictionEngland & Wales
JudgeLord Justice Sullivan,Lord Justice Tomlinson,Lewison LJ
Judgment Date24 October 2014
Neutral Citation[2014] EWCA Civ 1386
CourtCourt of Appeal (Civil Division)
Date24 October 2014
Docket NumberCase No: C1/2014/2773, 2756 and 2874

[2014] EWCA Civ 1386

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

PLANNING COURT

MRS JUSTICE PATTERSON

CO/1361/2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Sullivan

Lord Justice Tomlinson

and

Lord Justice Lewison

Case No: C1/2014/2773, 2756 and 2874

Between:
Secretary of State for Communities and Local Government
First Appellant
Reigate and Banstead Borough Council
Second Appellant
Tandridge District Council
Third Appellant
and
Redhill Aerodrome Limited
Respondent

James Maurici QC and Richard Kimblin (instructed by Treasury Solicitors) for the First Appellant

Stephen Whale (instructed by Tandridge District Council Legal Services and Reigate and Banstead Borough Council) for the Second and Third Appellants

Christopher Katkowski QC and Alistair Mills (instructed by Wragge Lawrence Graham CO LLP) for the Respondent

Hearing dates: 9 th October 2014

Lord Justice Sullivan

Introduction

1

On the 9 th October 2014 we allowed this appeal, set aside the Judge's Order quashing the Inspector's decision, and dismissed the Respondent's application under section 288 of the Town and Country Planning Act 1990 ("the Act"). We said that we would give our reasons in due course. These are my reasons for allowing the appeal.

Green Belt policy

2

The protection of the Green Belt around our main urban areas is one of the twelve "Core planning principles" in the National Planning Policy Framework ("the Framework") (paragraph 17). Paragraphs 87 and 88 of the Framework say 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." (emphasis added)

The Issue

3

Do the words "any other harm" in the second sentence of paragraph 88 of the Framework mean "any other harm to the Green Belt" as submitted by the Respondent, and found by the Judge, or do they include any other harm that is relevant for planning purposes, such as harm to landscape character, adverse visual impact, noise disturbance or adverse traffic impact, as submitted by the Appellants?

The Inspector's decision

4

In a decision dated 18 th February 2014 a Planning Inspector dismissed the Respondent's appeal against the refusals of planning permission by the Second and Third Appellants for the construction of a hard runway to replace the existing grass runways, together with ancillary infrastructure, at Redhill Aerodrome. The Aerodrome, which straddles the boundary between the two local planning authorities, is located in the Metropolitan Green Belt.

5

There is no challenge to the Inspector's conclusion that the proposal was inappropriate development in the Green Belt. In paragraph 19 of her decision the Inspector said:

"Submissions were made as to whether the Green Belt balancing exercise should follow the approach set out in the River Club judgment. Even though the judgment was made on the policy set out in Planning Policy Guidance 2, the wording in the Framework is very similar and I intend to follow the interpretation in the judgment. Furthermore this approach is reflected in decisions by the Secretary of State since the publication of the Framework."

6

The Inspector duly followed the River Club approach (see below, paragraphs 7 and 8). In her conclusions in paragraph 123 she said:

"123. The harm to the Green Belt by reason of the inappropriate development, the loss of openness and the encroachment into the countryside has substantial weight. The harm to landscape character has moderate weight and the slight adverse visual impact a small amount of weight. The limited harm to the quality of life and learning environment through noise disturbance and the failure to satisfactorily resolve the capacity and mode of travel issues provide additional weight against the proposal. The overall weight against the proposal is

very strong. This conclusion takes account of the mitigation afforded by the use of planning conditions and planning obligations."

Having identified in paragraph 124 the other considerations on the positive side – safeguarding employment, the prospect of additional jobs, the expansion of business aviation and support to business initiatives in the area – the Inspector concluded in paragraph 125:

"125. The other considerations, when taken together, do not clearly outweigh the potential harm to the Green Belt and the other identified harm. Very special circumstances to justify the development do not exist. The proposed hard runway development fails to comply with national policy to protect the Green Belt set out in the Framework…"

River Club

7

In R (on the application of River Club) v Secretary of State for Communities and Local Government [2009] EWHC 2674 (Admin), [2010] JPL 584 Frances Patterson QC (as she then was) sitting as a Deputy High Court Judge considered the meaning of the words "any other harm" in paragraph 3.2 of Planning Policy Guidance 2: Green Belts ("PPG2"). Paragraphs 3.1 and 3.2 of PPG2 were in these terms:

"3. 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.

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."

8

The Claimant in River Club had submitted that the "other harm" referred to in the third sentence of paragraph 3.2 meant harm to the purposes or objectives of the Green Belt, so that as a matter of law "any other harm" was constrained to Green Belt harm: see paragraph 21 of the judgment. The Deputy Judge rejected that submission for the reasons set out in paragraphs 26 and 27 of her judgment.

"26. Paragraph 3.2 of PPG2 is within the section of the PPG entitled "Control over development" and, within that part, subheaded "Presumption against inappropriate development". In my judgment, paragraph 3.2 is dealing with what is required to make inappropriate development acceptable in the green belt. That means considering the development as a whole to evaluate the harm that flows from it being inappropriate, together with any other harm that the development may cause, to enable a clear identification of harm against which the benefits of the development can be weighed so as to be able to conclude whether very special circumstances exist so as to warrant grant of planning permission.

27. It is of note that there are no qualifying words within paragraph 3.2 in relation to the phrase "and any other harm". Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. "Any other harm" must therefore refer to some other harm than that which is caused through the development being inappropriate. It can refer to harm in the green belt context, therefore, but need not necessarily do so. Accordingly, I hold that "any other harm" in paragraph 3.2 is to be given its plain and ordinary meaning and refers to harm which is identified and which is additional to harm caused through the development being inappropriate. It follows that I reject the argument that the phrase is constrained and applied to harm to the green belt only"

The judgment below

9

The Respondent applied under section 288 of the Act to quash the Inspector's decision on the ground that she had erred in taking non — Green Belt harm into account when deciding whether the "other considerations" clearly outweighed the potential harm to the Green Belt by reason of inappropriateness and any other harm. The Respondent submitted before Patterson J:

(i) that River Club was wrongly decided;

(ii) alternatively, that the policy context now contained in the Framework was so different that it required a different approach to the meaning of the words "any other harm" in paragraph 88: see paragraph 30 of the judgment.

10

Having referred in paragraph 53 to her earlier decision in River Club, Patterson J accepted the Respondent's submission (ii) for the reasons set out in paragraphs 54 – 57 of her judgment:

"54. Now, as Mr Katkowski QC submits, the policy matrix is different in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. That includes when, for individual considerations in a planning application, it is appropriate to refuse planning permission. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that...

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