Sharma v Secretary of State for Housing, Communities and Local Government & Ors

The Applicant, Peter Sharma appeals under s.289 of the Town & Country Planning Act 1990 (“the 1990 Act”) against a decision of the First Respondent’s Inspector dated 30 October 2017 dismissing the Applicant’s appeal against an enforcement notice issued on 14 December 2016 by the Second Respondent.

Permission to appeal was granted by Lewis J in an order dated 21 March 2018 on four Grounds set out in the Amended Statement of Facts and Grounds.

The Applicant operates an airport parking business from land at Stanwell Farm, Bedfont Road, Stanwell, Surrey (“the site”). The site is close to Heathrow Airport and there is a footbridge immediately outside the site which leads to Heathrow Airport. It is within the Green Belt (“GB”) although it is previously-developed land. The First Interested Party holds a leasehold interest in the site and the Second Interested Parties are the freehold owners of the site.

The site is a single parcel of land. The ‘eastern area’ of the has been used, inter alia, as a building contractor’s yard with office building, storage or building materials and plant, a washroom and parking. The ‘western area’ of the site formed part of the garden of Stanwell Farm. It is now a hardstanding area within the site.

The ‘eastern area’ comprises the majority of the site in size and is subject to three “Lawful Development Certificates” (“LDCs”) which allow for five identified semi-industrial uses, including as a building contractor’s yard, storage of building materials, storage of plant for a contractor specialising in investigation of ground conditions, use of buildings for storage and office use for a mobile welding business as well as open storage and parking. In connection with all five uses, manoeuvring, parking and use of washroom facilities is also permitted.

Previously there was a listed building on the site which was demolished around 2012 pursuant to listed building consent.

The Applicant currently uses the site for airport parking. On 14 December 2016, he was served with an enforcement notice issued pursuant to s.172 of the 1990 Act by the Second Respondent, the local planning authority. That enforcement notice (16/00311/ENF) alleged a breach of planning control in respect of a number of material changes of use of the land comprising: (1) the use of the site for airport car parking; (2) lawful garden land laid with hardstanding and incorporated into the existing yard; and (3) a boundary fence erected along the western end of the yard.

The enforcement notice required the Applicant to (1) cease the use of the site for the parking of motor vehicles; (2) remove the hardstanding and reinstate to grass the area previously garden land; and (3) remove the fencing along the western boundary. The period for compliance was two months.

The Applicant appealed on a number of grounds pursuant to s.174 of the 1990 Act. The Second Respondent appointed an Inspector. In his decision letter (“DL”), the Inspector dismissed the appeal but varied the enforcement notice with corrections. As regards the strip which was formerly part of the garden, the Inspector found that the hardstanding had not been integral to or part of the change of use to airport parking. That was equally true of the fence – both of which had been laid, or erected, several years before the alleged material change of use. Both were, therefore, immune from enforcement. He deleted the requirement to remove the hardstanding from the former garden land and the fence (DL, paras [4]-[7]).

The main issue concerned, however, the change of use of the site to airport parking. The Inspector dealt with this in the context of the National Planning Policy Framework (“the NPPF”) as a development within the GB. At para [10] of his DL he set out the relevant issues as follows:

“10.

The deemed application is simply for planning permission for the material change of use of the land to use for airport car parking. The site lies in the Green Belt (GB) and the appellant accepts that his use of it constitutes inappropriate development in the GB. The National Policy Framework (the Framework) provides that inappropriate development in the GB is harmful by definition and that substantial weight should be given to that harm. The main issues are therefore:

•

whether there is any additional harm in terms of:

◦

the impact on the openness of the GB and the purposes of including land within it; and/or

◦

sustainable transport objectives; and

•

whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. If so, would this amount to the very special circumstances required to justify the development?”

The Inspector dealt with: (a) the “openness” issue at paras [11]-[18]; (b) the issue of “sustainable transportation objectives” at paras [19]-[24]; (c) “very special circumstances” at paras [25]-[29]; and (d), “other matters” at para [30].

At para [31], the Inspector stated his overall conclusion that the

“development constitutes inappropriate development in the GB and it causes additional harm in terms of loss of openness and encroachment on the countryside.”

As a consequence, the Inspector varied the enforcement notice (at [38]) so that the breach of planning control was:

“without planning permission the making of a material change of use of the land to use for airport car parking.”

Further, the enforcement notice was varied to require the Applicant to cease that use (or any other car parking unrelated to the lawful use of the site) within a four-month period for compliance.

It is helpful to set out in full the Inspector’s reasoning on the issues of “openness” and “very special circumstances” as these encompass the reasoning which the Applicant challenges. In relation to the issue of ‘openness’, the inspector reasoned as follows at paras [11]-[17]:

“Openness and GB purposes

11.

The entire site is covered in hardstanding. As far as the hard surface is concerned, the notice as issued only related to a relatively small part of that hard surface along the western boundary of the site. I have now found that this notice cannot attack even that part of the hardstanding. Similarly, this notice cannot relate to the fence along the western site boundary and therefore it is only the parking of cars that will have any impact on openness.

12.

Whilst car parking does not effect a permanent physical change in the land, the nature of airport parking is that cars are likely to be present on site in significant numbers for the great majority of the time. No accurate count was undertaken but, at the time of my site visit, the parties agreed that there were probably at least 150 cars on the site. This far exceeds the 60 vehicle capacity estimated by the Highway Authority (HA), but that is probably because the HA assumed different spacing between the vehicles. In fact they are parked literally bumper to bumper, leaving a minimal amount of circulation space through the centre of the site.

13.

I note that lawful development certificates (LDCS) Refs 04/00877/CLD, 04/00917/CLD and 04/00918/CLD were granted in 2005 for a range of uses, including: storage; open storage (of specified items); maintenance and repair; storage of building materials and plant in connection with the operation of a building contractor’s business (on an area edged green on a plan). The LDCs also certified as lawful: site offices; parking, turning, access areas and hardstanding; and an ancillary washroom. However, the parties confirmed during the site visit that there are no longer any plans available to clearly show the areas within which the various activities took place and, in particular, I do not know the extent of any open storage or parking.²

14.

Furthermore, the references in the LDCs to “parking, turning, access areas and hardstanding” do not clearly indicate that car parking was lawful as a primary use on the site. In all these circumstances, it is difficult to form a clear picture of what could take place on this site without a grant of planning permission. What is clear is that the appeal site also now incorporates the area of land formerly covered by the now demolished farm house and its curtilage, to which the LDCs did not relate.

15.

I have been given 2 aerial photographs dated 2008 and 2013. The first appears to show some outside storage and a few vehicles parked, but none of these activities appeared as extensive as the current parking operation. Even though some buildings have been removed since then, the land was more open than it is now, when so many vehicles are consistently parked on it. The 2013 photograph shows virtually no open storage or parking at that time.

16.

On the evidence before me, and even though the site was already hard surfaced, I conclude that the parking of so many vehicles for much of the time has further reduced openness as matter of fact. However, openness also has a visual dimension. I accept that, from Bedfont Road, the site and the vehicles parked on it are largely screened from view, except at the access point, when the gates are open. When used as a building contractor’s yard, there may have been larger items stored on the site, which could have been visible from the road, but I have no evidence regarding the extent of this. Furthermore, the cars parked on the western part of the site are clearly visible from the footbridge to the north of Bedfont Road, almost opposite the site entrance. There will also be clear views across most of the site from many of the upper flats in the large 2½ storey blocks off Long Lane and Dudley Place to the southwest.

17.

There are very substantial commercial buildings to the west of Long Lane and airport buildings to the north of Bedfont Road and the Southern Perimeter Road. However, there is a large undeveloped area to the east of the site, up to Crane Road. The appellant’s airport parking significantly and visibly diminishes openness in that direction and, notwithstanding the previous uses and hardstanding, it represents further, urban encroachment on the countryside, in conflict with the purposes of including land in the GB. This is contrary to saved Policy GB1 of the Spelthorne Borough Local Plan (LP), adopted 2001 and the Framework.”

Footnote “2” to para [13] of the DL is in the following terms:

“The appellant says discussions with local people indicate that these uses related to the majority of the site, but this statement is too vague and indirect to carry any significant weight.”

As will be clear, one of the principal issues before the Inspector was the so-called “fall-back” position, namely the relative impact upon the ‘openness’ of the GB when the site is used by the applicant as an airport car park when contrasted with the lawful use that could be made of the site under the LDCs.

The Inspector’s conclusions were, therefore, that the use for airport parking “further reduced openness as a matter of fact” (para [15]) and also, as an aspect of its “visual dimension”, adversely affected the “openness” of the site – “openly and visibly diminishes openness” in the eastern direction.

At para [18] of the DL, the Inspector considered whether a proposed condition by the applicant to provide a “defensible, soft landscaped buffer zone along the eastern side boundary” tilted the issue of “openness” in the applicant’s favour and concluded that it did not as the material did not show that it “would be likely to significantly enhance the GB, in terms of its visual amenity, or biodiversity, or by improving damaged land. There would still be an overall reduction in openness”. The Inspector’s reasons were as follows:

“18.

I note the appellant’s suggestion that a condition could secure a defensible, soft landscaped buffer zone along the eastern site boundary. However, there is nothing before me to demonstrate that this would be likely to significantly enhance the GB, in terms of its visual amenity, or biodiversity, or by improving damaged land. There would still be an overall reduction in openness. Furthermore, there is already a defensible eastern site boundary, with vegetation beginning immediately beyond the fence.”

Having considered the issue of ‘sustainable transport objectives’ at paras [19]-[23], the Inspector concluded at para [24] of the DL that “the impact of this development on sustainable transport objectives is neutral”.

The Inspector went on to consider whether despite the airport car parking being “inappropriate development within the GB”, there were nevertheless “very special circumstances” because the harm to the GB was clearly outweighed by other considerations. He concluded (at paras [25]-[29]) that there were not “very special circumstances” for the following reasons:

“Very special circumstances

25.

As indicated, the Framework states that inappropriate development in the GB is harmful by definition and that substantial weight must be given to that harm. The actual detriment to openness and the harm to the GB purpose of assisting in safeguarding the countryside from encroachment further add to that harm. Very special circumstances (VSCs) will not exist unless all of this harm is clearly outweighed by other considerations.

26.

I have already concluded that the scope for landscaping would not provide a net benefit in terms of creating a soft, defensible eastern boundary, improving damaged land, or enhancing openness and/or biodiversity. Furthermore, whilst the LDCs may provide a fall-back position, the evidence does not clearly indicate that this would probably be worse than the current use, notwithstanding the scope for imposing some controls by condition now.

27.

Whilst the business appears to be successful and the parking spaces are in demand, it is not clear whether the use is meeting a previously unmet need, or whether “affordable” parking has created extra demand. The use might reduce the incidence of “kiss and fly”, but it might also encourage use of the private car over public transport. I accept that the efficient and effective functioning of the airport is in the national interest, but it is not clear whether this development contributes to that. It will not do so if it merely adds to congestion on local roads.

28.

I note the appellant’s claim that the use provides a source of low skilled jobs for local people. However, no details have been provided. Aside from the appellant, I saw one employee on site at the time of my visit. Local employment is an important benefit, but in the absence of more detail, I can only attach limited weight to this.

29.

Having regard to all matters raised, there are no considerations sufficient to clearly outweigh the harm by reason of inappropriateness and the additional harm identified. Accordingly, VSCs do not exist.”

The Applicant relies upon four Grounds set out in the Amended Statement of Facts and Grounds which may be summarised as follows:

Ms Megan Thomas, who represented the Applicant, developed these Grounds in her written skeleton argument and oral submissions. Mr Hugh Flanagan, who represented the First Respondent, in his skeleton argument and oral submissions (supported by Mr Peter Savill, who represented the Second Respondent, in his oral submissions) contended that the Grounds were not made out and the Inspector’s decision was lawful. I am grateful to all counsel for their helpful submissions.

The applicable law is not in dispute in this case.

The Applicant had a right of appeal under s.174 of the 1990 Act against the enforcement notice. So far as relevant to this case, Ground (a) in s.174(2)(a) of the 1990 Act which provides:

“An appeal may be brought on any of the following grounds –

a)

That, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged.”

Thus, so far as relevant to this case, the appeal amounted, in effect, to a deemed application for planning permission for the material change of use of the site to use for airport parking. The issue for the Inspector was, therefore, whether planning permission ought to be granted.

The Applicant’s appeal (with leave) to this Court is under s.289 of the 1990 Act against the decision of the Inspector upholding the enforcement notice in respect of the use of the site as an airport car park. The appeal is on the basis of a challenge to the lawfulness of the Inspector’s decision.

The proper approach to be followed by the Court when considering challenges to decision letters of planning inspectors is well-established and is set out in the well-known passage in the judgment of Lindblom J (as he then was) in his “seven familiar principles” in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government and another [2014] EWHC 754 (Admin) at [19]:

“The relevant law is not controversial. It comprises seven familiar principles:

(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

The relevant planning issues were set out by the Inspector in para [10] of the DL which I set out above. It was accepted that the Applicant’s use for airport car parking constituted “inappropriate development” within the GB (as set out in para 89 of the NPPF). The development was, as a consequence, “harmful” to the GB such that it should only be approved if there are “very special circumstances” (para 87). Substantial weight must be given to that harm in making the planning decision (para 88). Further, ‘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.”

It is common ground in this case that a principal issue (and the only one relevant to this case) for the Inspector was that of “openness” (see para [10], DL). Paragraph 79 of the NPPF states:

“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 characteristic of Green Belts are their openness and their permanence”

In Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466, the Court of Appeal acknowledged, having regard to the NPPF, that the concept of “openness” in the GB (at [23] per Sales LJ):

“has a spatial or physical aspect as well as a visual aspect”. (see also at [26])

Central to the issue of “openness” in this case is the so-called “fallback” development under the LDCs. In assessing the impact on the “openness” of the GB if the site is used as an airport car park, it is necessary to compare that use with the impact upon “openness” that would be inevitable by the lawful use of the site under the LDCs if there was a ‘real prospect’ of that “fallback” use.

The relevant law is set out by Lindblom LJ in Mansell v Tonbridge and Malling BC and others [2017] EWCA Civ 1314 at [27]:

“The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it:

(1)

Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker.

(2)

The relevant law as to a "real prospect" of a fallback development being implemented was applied by this court in Samuel Smith Old Brewery (see, in particular, paragraphs 17 to 30 of Sullivan L.J.'s judgment, with which the Master of the Rolls and Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin), at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery, in this context a "real" prospect is the antithesis of one that is "merely theoretical" (paragraph 20). The basic principle is that "… for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice" (paragraph 21). Previous decisions at first instance, including Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P. & C.R. 61 must be read with care in the light of that statement of the law, and bearing in mind, as Sullivan L.J. emphasized, "… "fall back" cases tend to be very fact-specific" (ibid.). The role of planning judgment is vital. And "[it] is important … not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court" (paragraph 22).

(3)

Therefore, when the court is considering whether a decision-maker has properly identified a "real prospect" of a fallback development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the "real prospect" will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker's planning judgment in the particular circumstances of the case in hand.”

With these principles in mind, I now turn to the four Grounds relied upon by the Applicant.

The essence of this ground is that although the Inspector accepted that the LDCs could form a legal fallback position, he failed to take the fallback position into account properly because he focussed on the actual past use rather than the use of the site that could, and would, be made by the Applicant in the future in accordance with the permitted uses under the LDCs.

In that regard, Ms Thomas acknowledged in her oral submissions that the Inspector had accepted that the permitted uses of the site under the LDCs could provide a legal fallback position. However, she submitted that it was clear from the Inspector’s language in the DL that he had failed properly to consider the “intense and numerous” uses that were permitted in the future.

First, Ms Thomas submitted that in para [15] of the DL he had considered past use by reference to two aerial photographs dating from 2008 and 2013 and his comment that “none of these activities appeared as extensive as the current parking operation”. That was wrong as it failed to reflect the real issue of what would be the “real prospect” of use in the future having regard to the LDCs permitted uses.

Secondly, Ms Thomas submitted that at para [16] of his decision the Inspector concluded that the use for airport parking has “further reduced openness as matter of fact”. There were, she submitted, no past facts to compare with the present. This also demonstrated the Inspector’s inappropriate comparison between the past and present, rather than the present and future use permitted under the LDCs.

Thirdly, Ms Thomas submitted that in both paras [16] and [17] of the DL the Inspector again looked to the past, noting there was no historical evidence of larger items being stored on the site and their visibility and, when considering the impact on openness in the eastern direction, he again refers to “previous uses”.

Finally, at para [26] of the DL, Ms Thomas submitted that the Inspector had impermissibly referred to “the evidence” as “not clearly indicat[ing]” that the permitted uses under the LDCs “would be probably worse than the current use”, which was again an impermissible comparison with the past uses.

Drawing the threads together, Ms Thomas submitted that the Inspector had simply failed to consider the fallback position on the basis of the five permitted semi-industrial uses in the future. Relying upon Mansell at [22] citing the first instance judgment of Garnham J, Ms Thomas submitted that the Inspector was required to consider the fallback position on the basis that the Applicant would carry out the permitted uses under the LDCs to “the fullest possible extent”.

Mr Flanagan submitted that the Inspector had not fallen into the error claimed by the Applicant. It was, he submitted, accepted that the relevant plans were not attached to the LDCs so as to demonstrate which areas of the site (demarked by colour coding) had been used for the permitted uses. The only existing plan did not assist. The Inspector was doing no more, when looking at what evidence there was of past use permitted by the LDCs, than seeking to ascertain in the absence of the plans what might be the use in the future. Mr Flanagan submitted that the Inspector first identified whether there was a fallback position – which he accepted. Secondly, the Inspector looked at what could be done under the LDCs. Thirdly, the Inspector looked at what has happened on the site to see what would be done in the future. Mr Flanagan relied on the Inspector’s words at para [26] of the DL that looked to the future in considering the fallback position when he said that the evidence did not clearly indicate that the fallback position “would probably be worse than the current use” (my emphasis).

Mr Flanagan relied upon the first three principles in Bloor Homes. The Applicant was wrongly seeking to apply a “hypercritical” approach to the Inspector’s DL. He accepted Ms Thomas’ characterisation of the permitted uses under the LDCs as “numerous” but he did not accept her characterisation of them as “intense”. He submitted that, as a matter of planning judgment, the Inspector was entitled to conclude that the evidence did not demonstrate that the site could lawfully be put to uses more harmful, in terms of the impact on the “openness” of the GB, than the proposed airport car parking use.

I have concluded that, despite the attractive way in which Ms Thomas put her submissions, the Applicant has not made good this ground.

In reading the Inspector’s DL, I bear in mind, in particular, the first principle in Bloor Homes. I read the DL as a whole and not in an overly legalistic or pernickety way, but in a flexible way. The Inspector did not need to rehearse, or set out at every instance, every argument in every paragraph. Read as a whole, I am satisfied that the Inspector did properly, in the circumstances of this case and on the basis of the evidence available, consider the fallback issue by correctly asking, and answering, the question whether the proposed use as an airport car park would have a worse impact upon “openness” in the GB than the permitted uses under the LDCs.

First, it is plain that the Inspector applied a fallback analysis: see, e.g. para 26 explicitly; but, in any event, it is implicit in his reasoning at paras [11]-[18] of the DL.

Secondly, the Inspector clearly had in mind the permitted uses under the LDCs: see para [13] where he sets them out.

Thirdly, the Inspector had limited evidence as to what the implementation of those uses would entail and therefore what impact that would have on the “openness” of the GB. He had both photograph evidence and evidence from a site visit that the airport parking was “literally bumper to bumper” and, as he said at para [12] of the DL “leaving a minimal amount of circulation space through the centre of the site”. I did not understand the applicant to challenge that characterisation and, having seen the photographs, it is clear to me that this was a conclusion which the Inspector was entitled to reach.

Fourthly, in the absence of the plans demarking the areas of use for the respective uses under the LDCs, the photographs were, at least, some evidence of what could happen on the land in accordance with the permitted uses. There was, in truth, a dearth of evidence. The Inspector noted in footnote 2 at para [13] that the Applicant told him that local people had indicated that the uses related to the majority of the site. It was, however, well within the Inspector’s lawful remit to regard that evidence as “too vague and indirect to carry any significant weight”. The evidence from the Applicant (set out in his Second witness statement dated 19 June 2018) went no further in providing any sound basis for determining the scope of future use beyond stating that “the appeal site could and would revert back” to the permitted uses under the LDCs.

I do not consider that Ms Thomas can gain any traction from reliance upon the Mansell case. In this case, the Inspector accepted, in my judgment, that there was a ‘realistic prospect’ of fallback use. That was, and is, supported by the Applicant’s evidence including a statement submitted during the appeal process. The scope of that use was, however, a matter of proof. It may be that evidence, as in the Mansell case, will lead to the conclusion that the permitted use will be pursued to its fullest extent. That was clearly the finding on the evidence in Mansell (see [28]-[30]). I agree with Mr Savill’s submission that Mansell does not establish that “fullest” permitted use must be assumed or is to be deemed to be the case as a matter of law. Each case is fact-sensitive and the appropriate finding must be made on the evidence. Of course, it may be ‘pushing at an open door’ such that a decision-maker is likely to infer that a commercial developer/owner is likely to wish to maximise the use in order to maximise the exploitation of their asset. But, such a finding must be evidence based and there may be countervailing evidence which could lead a decision-maker to a different conclusion.

In this case, however, the point is by-the-way. The Inspector did not conclude that the Applicant would not use to the fullest extent the permitted uses under the LDCs. Rather, he concluded that it had not been established on the evidence that use would be worse than using the site as an airport car park. That is an altogether different finding and does not delimit, improperly, the scope of use but rather relates to what that ‘full use’ entails in fact.

Fifthly, I accept Mr Flanagan’s submission (supported by Mr Savill) that reading the DL as a whole the Inspector was clearly striving to assess the impact of future permitted use against the use as an airport car park. Ms Thomas’ submissions, though attractively made, seek improperly to dissect the Inspector’s letter without having regard to his overall consideration and language. He was not, in my judgment, fixed upon the past: he was, rather, using it as an evidential tool, given the dearth of evidence, to assess the use and impact upon the “openness” in the GB if, and when, the site was used in accordance with that permitted by the LDCs. He was entitled to look at past use as some evidence of what could be the lawful use in the future. There was, after all, little or no evidence – and none was shown to me – as to what could be done other than as stated by category in the LDCs. The LDCs identified five uses (plus one ancillary one) may well justify Ms Thomas’ epithet, used in her submissions, of being “numerous”. But, whether they were shown to be “intense” required evidence and had to be decided on the basis of the evidence presented to the Inspector; as did the basis for a comparison with the use of the site as an airport car park. The comparison, of course, involved a planning judgment. The Inspector saw the “bumper to bumper” parking now and was entitled, in my judgment, to conclude that it “as a matter of fact” reduced “openness” of the site. I will return to this issue under Ground 2 but, as an aspect of visual openness, in the absence of evidence that the permitted uses would clutter the land to this extent, it was within the Inspector’s planning judgment to conclude rationally that the impact as a result of the present use would be greater. I do not accept that the Inspector, contrary to the plainly applicable law, fixed his gaze upon the past to the exclusion of the future impact upon “openness”.

One final matter in respect of Ground 1. Ms Thomas accepted that the Inspector could not be criticised for failing to give reasons for rejecting the future uses permitted in the LDCs (relying on Coln Park LLP v Secretary of State for Communities and Local Government and another [2011] EWHC 2282 (Admin)). She was plainly right not to do so. The Inspector did not reject the future uses permitted by the LDCs; rather he engaged in a lawful assessment of what, if utilised, impact they would have on “openness” in the GB and a comparison with the use as an airport car park.

For these reasons, I reject Ground 1.

The essence of this ground is that the Inspector erred by failing properly to deal with the visual dimension of ‘openness’ properly comparing the fallback uses with the site’s use for car parking.

Ms Thomas submitted that the Inspector had erred in his approach in para [16] of the DL. She relied upon what he said in respect of the impact on ‘openness’ from the three viewpoints: Bedfont Road; the upper floor flats in Dudley Place and the footbridge to the north of the site.

First, Ms Thomas submitted the Inspector had failed fully to take into account the impact on ‘openness’ of the fallback use apart from the Bedfont Road viewpoint. She submitted that he had accepted that from Bedfont Road the car parking was largely screened from view by the site fencing apart from when the access gates were open. Further, he accepted that when used as a building contractor’s yard “larger items stored on the site” could be visible from that viewpoint. However, when he considered the impact on ‘openness’ from the other two viewpoints, he only referred to the fact that the cars parked on the site would be visible without also recognising that the semi-industrial uses would also be visible. Ms Thomas submitted that this flawed his conclusion that the proposed use had a greater impact upon openness. Indeed, Ms Thomas went so far as to submit that, had the Inspector taken into account the impact of the lawful uses from all three viewpoints, no reasonable Inspector could have concluded that the lawful fallback uses would have a lesser impact upon ‘openness’ than the use of the site as a car park.

Secondly, Ms Thomas submitted that, to the extent the Inspector had considered the impact on ‘openness’ of the fallback uses, he had only considered the use as a builder’s yard and not taken into account the other uses, for example the height of plant that a contractor specialising in the investigation of ground conditions (which is one of the lawful permitted uses) might store on the site.

On behalf of the First Respondent, Mr Flanagan submitted first, that the Inspector had set out the fallback uses in para [13] of the DL. The Inspector was clearly aware of what they were. In para [16] of the DL, the Inspector can properly be understood to have those uses well in mind, including the other uses. However, it was also relevant that the Inspector had no evidence as to the “extent” of use that might result from the permitted uses.

Secondly, Mr Flanagan submitted that the effect on ‘openness’ that the fallback position had was equally applicable from all three viewpoints and it would be ‘nit-picking’ to expect the Inspector explicitly to set that out, having referred to the visual impact from the Bedfont Road viewpoint.

Thirdly, Mr Flanagan submitted that, to the extent that this ground was a reasons challenge to the Inspector’s decision, his reasons were intelligible and adequate enabling the parties to understand why he had decided the ‘openness’ issue against the Applicant. He relied upon Bloor Homes at [19(2)] and South Bucks DC and another v Porter (No 2) [2004] 1 WLR 1953 per Lord Brown at [36].

Fourthly, Mr Flanagan submitted that the Applicant’s contention that no reasonable Inspector could have concluded that the adverse impact upon openness was greater under the LDCs than the use of the site as a car park was an impermissible challenge to the Inspector’s planning judgment.

I have already set out above, and it is accepted by the parties, the impact upon the ‘openness’ of the GB has both a special and visual dimension. It was that issue which the Inspector considered at paras [11]-[17] of the DL. It is clear to me that the Inspector did properly engage in the comparative exercise of comparing the impact on ‘openness’ of the fallback position with the proposed use of the site as a car park. In this regard, I accept Mr Flanagan’s submissions. The Inspector’s decision and his reasons must be fairly read as a whole. Paragraph [16] must not be read in isolation.

At para [13], the Inspector set out the lawful uses. At paras [13]-[15], he explored the uses – as I have found in rejecting Ground 1 – that could be made of the site in accordance with the LDCs and (as a ‘realistic prospect’) what that would entail. Given the absence of the relevant plans attached to the LDCs, apart from one which was unhelpful on the extent of the permitted use on the site, there was a paucity of evidence. He concluded, in para [16], that the parking of “so many vehicles” when used as a car park reduced the “openness as a matter of fact”. Given the paucity of evidence about what the lawful uses could entail, and having seen the ‘bumper to bumper’ parking on the site as currently used, that judgment and conclusion was plainly and clearly one lawfully open to the Inspector.

In para [16], the Inspector then turned to the “visual dimension” of ‘openness’. It is plain that the Inspector clearly had in mind the three viewpoints that were part of the case. Two of them, the footbridge in Dudley Place and the upper flats off Long Lane, were obviously raised vantage points. The Inspector considered the visibility of “larger items” from the lower vantage point of Bedfont Road and noted that if used as a builder contractor’s yard, they might be visible, although the extent of that use was not established by the evidence. It would, in my judgment, be plainly ludicrous to conclude that the Inspector was not well aware, and did not have in mind, that any such visibility would necessarily also be the case from the higher vantage points of the footbridge and the flats. To do otherwise, would be to read the DL in an impermissibly legalistic way (see, Bloor Homes at [19(a)]). Likewise, the Inspector explicitly recognised the limited visibility from Bedfont Road – because of the fencing around the site – of the cars parked there under the current use. Their visibility would be readily apparent also from the higher vantage points of the footbridge (at least on the Western side of the site) and the flats as the Inspector noted in para [16]. I do not accept that the Inspector failed to consider the impact upon visual ‘openness’ by failing to take account of the impact of the fallback position from all three viewpoints.

Further, I do not accept that Ms Thomas’ submission that the Inspector failed to take into account the full panoply of fallback uses permitted under the LDCs. True it is that he only explicitly referred to use as a “building contractor’s yard” in para [16] but, again, he plainly had well in mind the extent of the fallback uses as set out at para [13] of the DL. The simple fact was that the evidence was limited and the Inspector, in my judgment, had well in mind those uses when reaching his conclusion in para [17] that:

“The appellant’s airport parking significantly and visibly diminishes openness in that direction [namely to the east] and, notwithstanding the previous uses and hardstanding, it represents further, urban encroachment on the countryside, in conflict with the purposes of including land in the GB”

In my judgment, the Inspector gave clear and intelligible reasons for reaching this conclusion. The Applicant’s contention that no reasonable inspector could properly reach any conclusion other than the fallback uses would have a greater impact on ‘openness’ is an inappropriate foray into the “planning judgment” of the Inspector (see Bloor Homes at [19(3)]) and does not, in my judgment, come anywhere near demonstrating the conclusion was Wednesbury irrational. It was, on the contrary, a conclusion properly open to the Inspector having considered all the evidence.

For these reasons, I reject Ground 2.

By this ground, the Applicant contends that the Inspector failed properly to consider the impact on the issue of “openness” of the proposed condition for a clear 10-metre “buffer zone” to the eastern boundary of the site.

Ms Thomas submitted that, before the Inspector, the Applicant had clearly put forward a condition that a 10-metre wide ‘buffer zone’ to the eastern side of the site which would “remain open and free of development contiguous with the open Green Belt land to the east, namely Green Acre Farm” (see paras 5.9 and 5.13 of the Applicant’s case). She submitted that, at para [18] of the DL, the Inspector had omitted to consider the impact of the ‘buffer zone’ (and its benefits) when considering the impact upon ‘openness’ if the present use was continued subject to that condition.

Mr Flanagan submitted the issue of a condition only arose if the fallback position had been properly considered and the ‘openness’ issue otherwise resolved adversely to the Applicant. Mr Flanagan submitted that the Inspector had expressly considered the condition, namely the 10-metre buffer zone and its impact on ‘openness’, at paras [18] and [26] of the DL.

The implications for ‘openness’ only arose, as Mr Flanagan submitted, if the Inspector has lawfully determined the ‘openness’ issue (absent the condition) against of the Applicant. The Inspector’s reasoning has, as a result, to be read and understood in that context. It is plain, in my judgment, that the Inspector did take into account the proposed condition.

First, para [18] of the DL is solely concerned with the effect of the condition on the ‘openness’ issue. In clear and unambiguous terms, the Inspector noted the proposed condition for a “defensible soft landscaped buffer zone along the eastern site boundary” and concluded there would be an “overall reduction in openness”.

Secondly, in para [26] of the DL, when dealing with “very special circumstances”, the Inspector recorded that:

“I have already concluded that the scope for landscaping would not provide a net benefit in terms of creating a soft, defensible eastern boundary…” (my emphasis)

The Inspector continued:

“Furthermore, whilst the LDCs may provide a fall-back position, the evidence does not clearly indicate that this would probably be worse than the current use, notwithstanding the scope for imposing controls by condition now.” (my emphasis)

Beyond doubt, in my judgment, the Inspector has taken into account the impact of a buffer zone, as proposed in the condition, in reaching his conclusion adverse to the Applicant in respect of the ‘openness’ issue.

For these reasons, I reject Ground 3.

In this ground it is contended that the Inspector failed to give adequate reasons when dealing with the impact on ‘openness’ of the proposed buffer zone. He wrongly required that it would not “significantly” enhance the visual amenity, biodiversity or damaged land when some enhancement would suffice.

Ms Thomas submitted that the Inspector had been wrong in para [18] of the DL to require that the buffer zone must “significantly” enhance the visual amenity or biodiversity or improve damaged land. She submitted that the proposed use of the site as a car park was “inappropriate development” in the GB by virtue of paras 88 and 89 of the NPPF. It was, as a consequence, she submitted, “harmful” to the GB (para 87, NPPF). However, in determining whether that harm taken with “any other harm” to the GB was “clearly outweighed by other considerations”, some enhancement to the ‘openness’ of the GB was a relevant factor and not only “significant” enhancements. Further, the Inspector had contradicted himself, when at para [26] of the DL, he stated that the buffer zone did not provide a “net benefit”.

Mr Flanagan, expressly supported by the submissions of Mr Savill, submitted that the Applicant’s analysis of the Inspector’s reasons was excessively legalistic. First, there was no inconsistency between paras [18] and [26]. He was simply explaining what was relevant to his assessment. Secondly, he was merely identifying the level of enhancement that would be required to demonstrate “very special circumstances” given the harm caused to the GB by the inappropriate development within it that the car parking use would be (see para 88, NPPF). Further, he was doing no more than reflecting para 88 of the NPPF that “very special circumstances” would not exist unless any harm (arising from the inappropriate development together with any other harm) was “clearly outweighed by other considerations”. Substantial weight had to be given to the harm to the GB, as a result, and would only be weighed by significant benefits.

It is common ground that the use of the site as a car park is inappropriate development in the GB within the meaning of paras 88-89 of the NPPF. It is by virtue of para 87 of the NPPF:

“by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”

Paragraph 88 identifies the judgment that has to be made in such a case:

“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.”

Read as a whole, I am satisfied that the Inspector’s reasoning is not inconsistent nor flawed. In para [18] of the DL, he considered the impact of the proposed buffer zone. He was, of course, doing that in the context of having already concluded that there was an adverse impact upon ‘openness’ when he contrasted the car parking use of the site with the fallback position. The condition was only relevant if that were the case. He noted that the buffer zone was

“not likely to significantly enhance the GB, in terms of its visual amenity, or biodiversity, or by improving damaged land.”

Then, the Inspector concluded:

“There would still be an overall reduction in openness”

As para [26] of the DL makes plain, the Inspector clearly considered that there was no net benefit achieved if the buffer zone was in place. That was a planning judgment which the Inspector was entitled rationally to make on the evidence.

Further, in any event, the Applicant could only succeed if there were “very special circumstances” and, giving “substantial weight” to the harm to the GB, that harm was “clearly outweighed” by other considerations (para 88, NPPF (my emphasis). I accept Mr Flanagan’s submission that, in practical terms, only significant benefits were capable of outweighing that harm. The Inspector searched for such benefits (see para [25], DL) and found the evidence did not establish there were such benefits (paras [26]-[29], DL). I am unpersuaded that the Inspector’s reasoning and conclusion are legally flawed on any basis put forward. I see no basis upon which it can be said (as it is in para 42 of Ms Thomas’ skeleton argument) that there was only one reasonable conclusion that there would be some enhancement given the semi-industrial use would be lawful.

One final matter which I can deal with under this ground. As a result of being raised by Mr Flanagan in his oral submissions, there was some discussion before me as to what could lawfully be carried out on the buffer zone under the LDCs. In the absence of the relevant plans previously attached to the LDCs, counsel could not identify what could be done there with any degree of particularity or precision. The best Ms Thomas could do was, by reference to the 2008 photograph, note there were probably a building or buildings on that strip. To the extent that the point has arisen, suffice it to say, given the state of the evidence, I do not see how any misunderstanding of the fallback position in this respect by the Inspector can fairly and properly be identified. I see no proper basis upon which, in exercising his planning judgment, the Inspector can be shown to have reached an irrational conclusion because there must be “some enhancement” to the visual and ecological aspects of the site simply because there would be a buffer zone under the proposed condition. The Inspector had to assess the overall effect on ‘openness’ to the GB and, for the reasons I have given, he did so lawfully and for sustainable reasons.

For these reasons, I reject Ground 4.

Having rejected the Applicant’s four Grounds in this appeal, the Inspector’s decision stands and the Applicant’s appeal is dismissed.