Siraj v Kirklees Council

Introduction .

This is an appeal, with the permission of HHJ Langan QC, sitting as a deputy High Court judge, against his Order dated 5 March 2010 dismissing the appellant's claim for judicial review of a planning permission, dated 7 April 2009, granted by the respondent council to the first interested party, Mr Bennett, for the erection of an agricultural machinery workshop on the site of Wool Row Lane/Cross Lane, Royd House, Huddersfield ("the site").

Factual background

The facts are set out in some detail in paragraphs 10 to 23 of the judgment below, neutral citation [2010] EWHC 444 (Admin). The site is in the Green Belt. The appellant is a local resident, who, together with other local residents, objected to the proposed development. The application for planning permission was first considered by the respondent's area planning subcommittee on 26 April 2007 following a site visit. The planning officer's report ("the report"), which recommended that planning permission should be granted, explained that the application had been referred to the subcommittee by officers "due to the sensitive nature of the proposal in the Green Belt";.

The members initially gave officers delegated authority to grant conditional planning permission subject to a section 106 agreement. The officers brought the application back to members at a meeting of the subcommittee on 30 September 2007:

"…due to the receipt of public objection questioning the applicant's evidence for very special circumstances to justify this inappropriate development which would otherwise be unacceptable in the Green Belt."

Having described the site, the report under the sub-heading "policy" identified the relevant policies:

"The site is shown as Green Belt and Area of High Landscape Value on the UDP … The following policies are relevant"

Included in the list of relevant policies was policy D8 in the UDP, summarised as: "inappropriate development will not be permitted in the [Green Belt] except in very special circumstances." The report also referred to PPG 2: Green Belts, with the comment "PPG 2—Green Belts reflects the terms of D8."

The report summarised the views of consultees. These included the respondent's Economic Development Service, which supported the application:

"It is appreciated that this application is a departure from green belt policy but hope that weight is given to the efforts of the business has made to find more suitable land / premises and the need for this business to be retained in this area for the reasons outlined."

The representations of those who supported and objected to the proposed development were then summarised, followed by the applicant's (the first interested party's) supporting information and his response to the objections.

The planning officer's assessment of the application for planning permission commenced with this paragraph:

"The proposal is without question inappropriate development in the Green Belt. UDP policy D8 states that such development will not be granted in the Green Belt unless very special circumstances can be demonstrated by the applicant. This is reflected in PPG 2 which states that 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."

Pausing there, is it is to be noted that Mr Roe accepted on behalf of the appellant that, insofar as this paragraph dealt with PPG 2, it was an accurate summary of the relevant part of PPG 2. He was right to do so: see R( Wychavon District Council) v The Secretary of State for Communities and Local Government [2008] EWCA Civ 692per Carnwath LJ at paragraph 26.

Having referred to a number of policies which were supportive of employment development, the report continued:

"The main issue for the Sub-Committee is whether members consider that there are very special circumstances to outweigh the harm caused by the development. The very special circumstances put forward by the applicant is that he provides a specialised service to this particular farming community for which there is no other provider in the area and for which farmers would otherwise need to travel a greater distance or experience delays in accessing the service. This is strongly disputed by objectors and in turn the applicant has sought to address their concerns.

Your officers conclude that the applicants business is the franchise for one agriculture machinery manufacturer which has written in support of the proposal. The business provides repairs for the agricultural community and whilst there are other engineering facilities in the area available to local farmers, it is the only local firm supplying specialist repairs for that franchise. Verbal information given from the National Farmers Union area office supports the view that farmers prefer main dealers as the equipment is technical and such dealers are more likely to have the specialist equipment and knowledge to ensure that faults are identified efficiently and without delay. The NFU also confirmed that there a few specialist main dealers in the locality.

If Members accept this view and the need to retain the business in the locality they must then be satisfied that this location is the only viable option and that there are no others which would be more appropriate in terms of planning policy. In this respect the applicant has identified previous options and the reasons why they were unacceptable. The applicant states financial reasons in some instances although no figures have been produced as well as refusal of a landowner to sell the site. The applicant has also stated that there are practical difficulties associated with his present site. Notwithstanding the submissions from the objectors it is Officers' view that financial constraints are a material planning consideration. The applicant has not provided any third party evidence to confirm this and Members need to be satisfied that this site is the only option in order to accept financial constraints as very special circumstances to justify inappropriate development in the Green Belt. In Officers' view the lack of third party evidence weakens the applicant's case however, when combined with the other evidence of need and support from the Council's EDS officer it is considered that approval can be recommended.

On balance it is considered that very special circumstances have been demonstrated by the applicant. If Members look favourably on the proposal it is recommended that officers be delegated to grant permission with appropriate conditions subject to a S106 Agreement to ensure that the development is removed upon cessation of occupation by the business and the site restored."

"

The members resolved to grant planning permission in accordance with the recommendation in the report subject to the Secretary of State not wishing to call in the application. The subcommittee delegated authority to officers to grant planning permission subject to the applicant entering into a Section 106 agreement to remove the development and reinstate the site, upon his business, Sovereign Agricultural Services, ceasing to trade from the premises. The Secretary of State did not call in the application, but it took some considerable time for the section 106 agreement to be negotiated, so the planning permission was not granted until 7 April 2009.

The decision notice said that:

"The applicant has demonstrated [i] the specialist nature of his operation, [ii] the operational requirements of customers, [iii] the difficulties of remaining in his present location and [iv] the lack of other suitable alternative sites all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt. Further the design and materials would not be harmful to the character of the area nor would the use be harmful to road safety." [numbering added for ease of reference]

It should be noted that, by the time that planning permission was granted, policy D8, which had been referred to in the report, was no longer part of the UDP, not being one of those policies that had been saved.

The grounds of appeal .

Before the judge the planning permission was challenged on four grounds. The judge rejected all of those grounds, and "issue 3", which was dealt with in paragraphs 35 to 37 of the judgment, is no longer pursued as a separate ground. There are therefore three grounds of appeal. It was submitted by Mr Roe that the judge had erred in rejecting the following three criticisms of the respondent's decision: 1) failure to correctly apply the test in PPG 2 when deciding whether to grant planning permission; 2) failure to give adequate reasons for the decision to grant planning permission; and 3) reaching a decision that was Wednesbury perverse. I will consider each of these grounds in turn.

Discussion

The material parts of PPG 2 are...