Secretary of State for Communities and Local Government & Ors v Redhill Aerodrome Ltd

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.

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)

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?

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.

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.”

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.”

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…”

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.”

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 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:

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 warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.

55.

Here, the individual non Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments?

56.

On an individual basis given the clear guidance given in the NPPF I have no difficulty in concluding that, in this case, it was not right to take the identified non Green Belt harms into account. The revised policy framework is considerably more

directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in my judgment, it would be wrong to include that consideration as “any other harm”.

57.

That leaves the question of whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In my judgement it would not be right to do so. That is because the Framework is precisely as it says: a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seems to me to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. Such phraseology does not appear in the Green Belt part of the NPPF.”

Patterson J did not accept the Respondent’s submission (i) (above). In paragraph 60 of her judgment she said:

“60.

In those circumstances I do not need to hold that my previous decision in River Club was wrong. It was taken in a different policy context where there was greater scope for flexible interpretation. That is not to say that I am ignoring or disregarding the jurisprudence in Ex Parte Taj. The fact is that the instant decision had to be determined in a NPPF policy context. If the consequence of that means that non Green Belt harms of a lesser effect than those which would warrant refusal on an individual basis cannot be considered as part of a cumulative impact of a development proposal, as set out, that is due to the effect of the wording of the NPPF.”

There was no Respondent’s Notice, and the Respondent’s Skeleton Argument did not suggest that River Club was wrongly decided in the policy context of PPG2. At the outset of the hearing we asked Mr. Katkowski QC to confirm that the Respondent was not submitting that River Club was wrongly decided. Although he was reluctant to concede that River Club was rightly decided in the context of PPG2, he did not pursue a submission that it was wrongly decided, and confirmed that he was content to base the Respondent’s case on its submission (ii) (above).

Before Patterson J the Respondent had relied on Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1509 in support of its submission that River Club was wrongly decided: see paragraph 31 of Patterson J’s judgment. That reliance was misplaced. In his oral submissions before us Mr. Katkowski accepted that the only “other” harm that had been found by the Inspector in Doncaster in addition to the harm by reason of inappropriateness was harm to the openness and purpose (preventing urban encroachment into the countryside) of the Green Belt: see paragraph 19 of the judgment in that case. Thus the issue raised in River Club – whether “any other harm” was confined to harm to the Green Belt other than harm by reason of inappropriateness – did not arise in Doncaster.

River Club was decided on the 7^th October 2009. I have referred to it at some length because the River Club approach to the meaning of “any other harm” in paragraph 3.2 of PPG2 was well established as the existing Green Belt policy background against which the policies in the NPPF were prepared, and published in March 2012. An earlier example of the same approach to the meaning of “any other harm” in paragraph 3.2 of PPG2 can be seen in R (on the application of Basildon District Council) v First Secretary of State [2004] EWHC 2759 (Admin), [2005] JPL 942: see paragraph 18 of that judgment. Mr. Katkowski accepted that there was no authority which supported a different approach to the meaning of “any other harm” in the context of PPG2.

It is common ground that excluding non – Green Belt harm from “any other harm” in the second sentence of paragraph 88 of the Framework would make it less difficult for applicants and appellants to obtain planning permission for inappropriate development in the Green Belt because the task of establishing “very special circumstances”, while never easy, would be made less difficult. All of the considerations in favour of granting permission would now be weighed against only some, rather than all of the planning harm that would be caused by an inappropriate development.

If it had been the Government’s intention to make such a significant change to Green Belt policy in the Framework one would have expected that there would have been a clear statement to that effect. Mr. Katkowski accepts that there is no such statement. In my judgment, all of the indications are to the contrary:

I readily accept that these indications are not conclusive. The Framework means what it says, and not what the Secretary of State would like it to mean: see the authorities cited by the Judge in paragraphs 18 and 19 of her judgment. However, if the Framework has effected this change in Green Belt policy it is clear that it has done so unintentionally. Mr. Katkowski did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the Framework. He was right not to do so. The text of the policy has been reorganised (see paragraphs 2 and 7 above), but all of its essential characteristics – “inappropriate development is, by definition, harmful to the Green Belt”, so that it “should not be approved except in very special circumstances”, which “will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”, and the “substantial weight” which must be given to “harm to the Green Belt” – remain the same. Mr. Katkowski submitted that the change in policy was to be inferred, not from the wording of paragraphs 87 and 88, but from the other policies in the Framework which “wrapped around” Green Belt policy, and which were, he submitted, very different in some respects from previous policies in the earlier policy documents which were replaced by the Framework. At an early stage in his submissions he said that at the heart of his case was “Context, context, context.”

There is no dispute that the words in paragraph 88 should not be construed in isolation, and must be construed in the context of the Framework as a whole, but Mr. Maurici QC and Mr. Whale for the Appellants rightly submit that the

The Appellants also submit that the Judge’s approach to “any other harm” would lead to an imbalance in the weighing exercise that is at the heart of paragraph 88. In paragraph 51 of her Judgment, having rejected the Second and Third Appellants’ submission that the effect upon landscape character and the visual impact of the proposed development were harms to the Green Belt, Patterson J continued:

“51.

…The effect upon the landscape character and the visual impact of a development proposal are clearly material considerations but are different from a consideration of harm to a Green Belt. If a development proposal contributed to the enhancement of the landscape, visual amenity and biodiversity within the Green Belt those could well be factors in its favour as part of a very special circumstances balancing exercise….”

It is common ground that all “other considerations”, which will by definition be non-Green Belt factors, such as the employment and economic advantages referred to by the Inspector in her decision in this case, must be included in the weighing exercise. On the Judge’s approach, if an inappropriate development in the Green Belt is beneficial in terms of the appearance of the landscape, visual amenity, biodiversity or, presumably any other matter relevant for planning purposes such as the setting of a listed building, or transportation arrangements, it must be weighed in the balance when deciding whether “very special circumstances” exist; but if the inappropriate development is harmful to any of those non-Green Belt considerations, that harm must not be weighed in the balance when deciding whether “very special circumstances” exist. I accept the Appellants’ submission that this imbalance is illogical. 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.

Mr. Katkowski submitted that it was not illogical to exclude non-Green Belt harm from the weighing exercise because the underlying purpose of the policy was to protect the openness of the Green Belt so that it could continue to serve one or more of the five purposes identified in paragraph 80 of the Framework. Since there is no suggestion that the underlying policy purpose has changed as between PPG2 and the Framework – the essential characteristics and the five purposes of the Green Belt all remain the same – this argument is, in reality, a return to the submission that River Club was wrongly decided. There is no dispute that the underlying purpose of the policy was, and still is, to protect the essential characteristic of the Green Belt – its openness – but there is nothing illogical in requiring all non-Green Belt factors, and not simply those non-Green Belt factors in favour of granting permission, to be taken into account when deciding whether planning permission should be granted on what will be non-Green Belt grounds (“very special circumstances”) for development that is, by definition, harmful to the Green Belt.

It is true that the “policy matrix” (see paragraph 54 of the judgment) has changed in that the Framework has, in the words of the Ministerial foreword, replaced “over a thousand pages with around fifty, written simply and clearly.” Views may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter. There have been changes to some of the non-Green Belt policies, and there have also been changes to detailed aspects of Green Belt policy, not all of which were identified in the Impact Assessment: see eg. Europa Oil and Gas v Secretary of State for Communities and Local Government [2014] EWCA Civ 825, [2014] JPL 1259.

However, I do not accept the premise which underlies the Respondent’s case, which was accepted by the Judge, that the other policies “wrapping around” the Green Belt policy in paragraphs 87 and 88 of the Framework are “very different” from previous national policy (see paragraph 24 of the judgment), or that, as the Judge put it, there has been “a considerable policy shift”: see paragraph 56 of the judgment.

The Judge listed the policy differences relied upon by the Respondent in paragraph 23 of the judgment. Mr. Katkowski placed paragraph 32 of the Framework at the forefront of his submissions, and it is the only policy expressly relied upon by the Judge in her conclusions: see paragraph 57 of the judgment. I will deal with paragraph 32 below (paragraphs 26 - 33). I am not persuaded that any of the other policies relied upon by Mr. Katkowski is an example of a change of substance, as opposed to a shorter, and in the Minister’s view, a simpler and clearer, statement of well established policy. The policy in respect of heritage considerations is the best illustration of this point. In his oral submissions Mr. Katkowski accepted that the policy contained in paragraph 133 of the Framework was not substantially different from the policy guidance which was replaced by the Framework.

The Judge did not refer to paragraph 134 of the Framework which says that when a development would cause less than substantial harm to the significance of a designated heritage asset, that harm must be weighed against the public benefits of the proposed development. Mr. Katkowski accepted that this approach did not represent any practical change from previous policy. If less than substantial harm to the significance of a designated heritage asset must be weighed against the public benefits of the proposed development in all cases, it is difficult to see why, in the case of an inappropriate development in the Green Belt which would cause harm that is less than substantial to the setting of a listed building, that harm should not be included as “any other harm” when the public benefits of the proposed development are being weighed in the balance as the “other considerations” in favour of granting permission for the inappropriate development.

Paragraph 32 of the Framework requires all developments that would generate significant amounts of traffic to be supported by a Transport Statement or Transport Assessment. Account must be taken of a number of factors, including whether:

“improvements can be undertaken within the transport network that cost effectively limit the significant impacts of the development.”

The “residual cumulative impacts” referred to in paragraph 32 are impacts on the transport network. There is nothing new in the proposition that such residual cumulative impacts – ie those traffic impacts which would remain after any highway improvement to limit the significant impacts of the development have been carried out – are a material planning consideration which may, in appropriate cases, justify a refusal of planning permission. What is new is that part of the policy which, unusually, sets out the only basis on which planning permission should be refused on this ground: permission should only be refused on transport grounds “where the residual cumulative impacts of development are severe” (emphasis added).

While this is a change in transport policy, which is now more prescriptive in this respect, it does not provide any support for the Respondent’s submission that the Framework has implicitly effected a change in Green Belt policy. It does not follow from the (new) policy that permission should only be refused on transport grounds where the residual cumulative impacts of a development are severe, that when considering whether permission for inappropriate development in the Green Belt should be granted, an adverse residual cumulative transport impact of that development that is less than severe should be ignored when an Inspector is deciding whether “the potential harm to the Green Belt by reason of inappropriateness, and any other harm”, is clearly outweighed by “other considerations”, which would include any beneficial transport considerations, eg an offer to provide a bus service to the development, or to fund the construction of a new railway station.

Mr. Katkowski repeated the submission that is referred to in paragraph 25 of the judgment: that if the River Club approach to “any other harm” is followed an applicant for planning permission is “cheated” of the benefit of those policies in the Framework which prescribe the threshold at which particular harms will justify a refusal of planning permission. Paragraph 37 of the Respondent’s Skeleton Argument explained the basis of that submission, as follows:

“37.

To take an easy example of the consequences of applying the River Club approach to the [Framework]: if a development is sited outside the green belt, it can “only” be refused on transport grounds if the impact would be “severe” (paragraph 32) but if the site is in the green belt then either instead of or in addition to this very specific policy test, any adverse transport impact (even if far less than “severe” and even if the impact was on roads outside the green belt) would lead to a refusal of permission unless “clearly outweighed” by “very special circumstances” under [paragraph] 88.”

The Judge accepted that submission, saying in paragraph 56 of her judgment:

“Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the [Framework] as to warrant refusal …. it would be wrong to include that consideration as “any other harm”.”

It is not clear whether the Judge considered that where an individual non-Green Belt consideration did reach the impact level for refusal prescribed in the Framework, eg where there would be “significant harm” to biodiversity, such a consideration could then be taken into account in the weighing exercise as “any other harm”. If that was the Judge’s approach, it was not supported by Mr. Katkowski who submitted that non-Green Belt harm, whether or not it reached the impact level prescribed for refusal in the Framework on another ground, such as transport or biodiversity, was not “any other harm” for the purposes of paragraph 88 of the Framework.

In my judgment, there are two fallacies in this submission. There is no question of an applicant or appellant being “cheated” of the benefit of another policy in the Framework which prescribes a threshold for a refusal of permission on a particular ground, such as transport or biodiversity. First, the submission assumes that if the threshold for a refusal of planning permission on transport or biodiversity grounds is not met in the case of a proposed development outside the Green Belt any adverse impact on transport or biodiversity must simply be ignored when a decision is taken whether to grant or refuse planning permission. That assumption is incorrect. Take the example of a proposal for a large scale commercial development in the countryside outside the Green Belt. If, as is likely, the proposal is not in accordance with the policies in the development plan for the protection of the countryside, planning permission must be refused in accordance with the development plan “unless material considerations indicate otherwise”: see section 70(2) of the Act and section 38(6) of the Planning and Compulsory Purchase Act 2004, and paragraphs 11 and 12 of the Framework.

The Framework does not purport to alter the statutory duty to have regard to “any other material consideration” when determining a planning application or appeal: see section 70(2) of the Act. When deciding whether “material considerations indicate otherwise” the local planning authority or the Inspector on appeal will consider all of the material considerations, those which point in favour of granting permission, and those considerations which, in addition to the conflict with the development plan, point against the grant of permission. In the former category there may well be employment and economic considerations of the kind referred to in the Inspector’s decision in the present case. If the proposed development would cause some, but not significant harm to biodiversity; some, but not substantial harm to the setting of a listed building; and some, but not severe harm in terms of its residual cumulative transport impact, those harmful impacts will fall within the “material considerations” which point against the grant of permission. The fact that a refusal of planning permission on biodiversity grounds, heritage grounds or transport grounds would not be justified does not mean that the harm to those interests would be ignored. The weight to be given to such harm would be a matter for the Inspector to decide in the light of the policies set out in the Framework, but it would not cease to be a “material consideration” merely because the threshold in the Framework for a refusal of planning permission on that particular ground was not crossed. The position is no different if development is proposed within the Green Belt, save that the “very special circumstances” test will be applied if the proposal is for inappropriate development in the Green Belt.

The second fallacy in the Respondent’s submission is the proposition that “any adverse transport impact, even if far less than severe….would lead to a refusal of planning permission unless ‘clearly outweighed’ by ‘very special circumstances.’ ” The harm that must be “clearly outweighed by other considerations” is not simply the less than severe transport harm, but the harm to the Green Belt by reason of inappropriateness and “any other harm”, which would include, but would not be limited to the less than severe transport harm. If, having carried out this balancing exercise, the Inspector concluded that “very special circumstances” did not exist, she would refuse planning permission, not on transport grounds, but on the ground that the proposed development did not “comply with national policy to protect the Green Belt set out in the Framework”: see the Inspector’s decision in this case (paragraph 6 above).

There is one respect in which it can fairly be said that there has been a change in policy. The Framework now places a presumption in favour of sustainable development at the heart of national planning policy: see paragraph 14 of the Framework. The Judge mentioned this new presumption in paragraph 47 of her judgment, but it does not assist the Respondent. One of the circumstances in which the policy that permission should be granted where relevant policies in the development plan are out of date (which was conceded by the Second and Third Respondent in respect of some of their development plan policies, see paragraph 12 of the Inspector’s decision) does not apply is if “specific policies in this Framework indicate development should be restricted. (Footnote: ¹)” Footnote 9 gives a number of examples of such policies. Those examples include policies relating to land designated as Green Belt. Thus, far from there being any indication that placing the presumption in favour of sustainable development at the heart of the Framework is intended to effect a change in Green Belt policy, there is a clear statement to the contrary.

The Inspector’s approach to “any other harm” was correct.

I agree.

I also agree.