Wrotham Parish Council v The Secretary of State for Housing, Communities and Local Government & Ors

This is a challenge to  the decision of the Secretary of State’s (“the SoS”) Inspector on 13 February 2025 (the “Decision”) to allow the Second Defendant’s (“Moto”) planning appeal under s.78 of the Town and Country Planning Act 1990 (“TCPA 1990”) and grant outline planning permission (all matters reserved except access) for “construction of a secure 24-hour truck stop facility for up to 197 HGVs incorporating fuel station; amenity building of up to 1100 sqm; creation of a new access to A20 via roundabout; landscaping and other associated works” (the “Development”) on land that forms part of Wrotham Water Farm, Wrotham, Kent (the “Site”).  

The Claimant is the Parish Council for the area and appeared at the hearing with a consortium of other parish councils.

The Third Defendant (“the LPA”) is the local planning authority for the area in which the Site is situated. It refused planning permission for the Development and opposed Moto’s appeal. It supports the Claimant’s case on Ground 1 (it makes no submissions on Ground 2).  

The Claimant was represented by Dr Alex Williams. The Secretary of State for Housing, Communities and Local Government was represented by Mr Richard Moules KC and Nick Grant. Moto was represented by Mr Christopher Katkowski KC and Ms Stephanie Hall. The LPA was represented by Mr Asitha Ranatunga.

The Claim is pursued on two remaining grounds (Ground 2 having been abandoned), namely: 

The Site is undeveloped land within the Green Belt, near to the Kent Downs National Landscape (“KDNL”).  The southern boundary of the Site partly abuts the slip road to the motorway at junction 2A of the M26. The Site is immediately northwest of junction 2A and it is adjacent to the A20 (which joins the roundabout at junction 2A). It is also near to the M20.   

Moto applied for planning permission for the Development in March 2023. The LPA refused in February 2024 citing reasons relating to (i) inappropriate development in the Green Belt and (ii) impact on the character appearance of the area and harm to the KDNL through the introduction of built form and lighting. 

Moto appealed and the appeal was determined by a hearing held on 9-10 January 2025. The outcome of this hearing (the Decision of 13 February 2025) is detailed at Paragraph 21. 

Chapter 13 of the NPPF is concerned with “protecting Green Belt land”. It contains policies in respect of both plan-making and decision-taking.  

In terms of decision-taking, paragraph 153 NPPF provides that inappropriate development in the Green Belt is, by definition, harmful and requires very special circumstances (“VSC”) to justify it: 

“153.

When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt, including harm to its openness. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. ‘Very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is very clearly outweighed by other considerations.”

Relatedly, paragraph 154 NPPF provides that development in the Green Belt is inappropriate unless it falls within one of the listed “exceptions”.  

The policy in paragraph 155 NPPF was added in the December 2024 revision. It creates a new exception: development will not be inappropriate (i.e. it will be appropriate) if it satisfies limbs (a)-(d) of the new policy. Paragraph 155 NPPF provides: 

“155.

The development of homes, commercial and other development in the Green Belt should also not be regarded as inappropriate where all the following apply:  

a.

The development would utilise grey belt land and would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan;  

b.

There is a demonstrable unmet need for the type of development proposed;  

c.

The development would be in a sustainable location, with particular reference to paragraphs 110 and 115 of this Framework; and  

d.

Where applicable the development proposed meets the ‘Golden Rules’ requirements set out in paragraphs 156-157 below.”

The ‘golden rules’ in paragraphs 156-157 NPPF relate to “major development involving the provision of housing”. In such cases, where the golden rules are satisfied, paragraph 158 NPPF provides that “a development which complies with the Golden Rules should be given significant weight in favour of the grant of permission”.

The expression “Grey Belt” is defined in the Glossary as follows: 

“Grey belt: For the purposes of plan-making and decision-making, ‘grey belt’ is defined as land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b), or (d) in paragraph 143. ‘Grey belt’ excludes land where the application of the policies relating to the areas or assets in footnote 7 (other than Green Belt) would provide a strong reason for refusing or restricting development.”

Footnote 7 attaches to paragraph 11 NPPF, which sets out the presumption in favour of sustainable development (commonly called the ‘tilted balance’). Paragraph 11 NPPF provides:

“11.

Plans and decisions should apply a presumption in favour of sustainable development.  

For plan-making this means that:  

a)

all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects;  

b)

strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas, unless:  

i.

the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area [fn7]; or  

ii.

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

For decision-taking this means:  

c)

approving development proposals that accord with an up-to-date development plan without delay; or  

d)

where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:  

i.

the application of policies in this Framework that protect areas or assets of particular importance [fn 7] provides a strong reason for refusing the development proposed; or  

ii.

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.”

Footnote 7 states: 

“The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 194) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, a National Landscape, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 75); and areas at risk of flooding or coastal change”. 

One of the NPPF policies falling within footnote 7 is paragraph 189 NPPF, which concerns, among other things, National Landscapes. Paragraph 189 NPPF provides: 

“Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and National Landscapes which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads. The scale and extent of development within all these designated areas should be limited, while development within their setting should be sensitively located and designed to avoid or minimise adverse impacts on the designated areas.”

The policies within the scope of footnote 7 also include paragraph 215 NPPF concerning heritage, which provides: 

“215.

Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.”

In terms of plan-making, paragraph 145 NPPF provides that “once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified through the preparation or updating of plans”. 

Paragraph 146 NPPF sets out that ‘exceptional circumstances’ may include instances where a local planning authority cannot meet its identified need for homes, commercial and other development, and it advises such authorities to review their Green Belt boundaries: 

“Exceptional circumstances in this context include, but are not limited to, instances where an authority cannot meet its identified need for homes, commercial or other development through other means. If that is the case, authorities should review Green Belt boundaries in accordance with the policies in this Framework and propose alterations to meet these needs in full, unless the review provides clear evidence that doing so would fundamentally undermine the purposes (taken together) of the remaining Green Belt, when considered across the area of the plan.”

Paragraph 147 NPPF provides that “before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, the strategic policy-making authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development”. 

Paragraph 148 NPPF deals with cases in which it is necessary to release Green Belt land for development. It sets out an order of preference for release that gives priority to previously developed land, and then grey belt land that has not been previously developed, before other Green Belt locations are considered:  

“Where it is necessary to release Green Belt land for development, plans should give priority to previously developed land, then consider grey belt which is not previously developed, and then other Green Belt locations. However, when drawing up or reviewing Green Belt boundaries, the need to promote sustainable patterns of development should determine whether a site’s location is appropriate with particular reference to paragraphs 110 and 115 of this Framework. Strategic policy-making authorities should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary.”

The Planning Practice Guidance (“PPG”) published on 27 February 2025 (i.e. after the Decision date of 13 February 2025) contains guidance on “how should the application of footnote 7 be considered when identifying land as grey belt?”. Paragraph 006 states:  

“How should the application of footnote 7 be considered when identifying land as grey belt?

As defined in the NPPF, grey belt land excludes land where the application of policies relating to the areas or assets in footnote 7 to the NPPF (other than Green Belt) would provide a strong reason for refusing or restricting development. In reaching this judgment, authorities should consider where areas of grey belt would be covered by or affect other designations in footnote 7. Where this is the case, it may only be possible to provisionally identify such land as grey belt in advance of more detailed specific proposals.”

On 13 February 2025, the Inspector issued the Decision Letter (“DL”) in relation to the Development, after a two-day hearing that took place on 9 and 10 January 2025. At DL/17 she identified the three main issues as: (a) whether the proposal would conserve and enhance the KDNL; (b) whether the proposal would be inappropriate development in the Green Belt; and (c) the effect of the proposal on the character and appearance of the area.  

The Inspector dealt with the first main issue at DL/18-38. The Inspector’s conclusions on main issue 1 were set out at DL/37-38 where she found, among other things, that the Development would accord with paragraph 189 of the NPPF. Following the withdrawal of Ground 2, no criticism is made of her analysis and conclusions in those paragraphs.  

The Inspector dealt with the second main issue at DL/39-78 under a series of sub-headings. The first sub-heading, titled “grey belt” (DL/39-42), addressed whether paragraph 155(a) NPPF was satisfied. At DL/39 the Inspector correctly set out the two components of the definition of “grey belt” in the Glossary of the NPPF: 

“39.

Prior to the publication of the 2024 Framework, it was common ground that the proposal would represent inappropriate development. However, paragraph 155 introduces the concept of grey belt land where development in the Green Belt may not be considered inappropriate, subject to a series of criteria. The definition of grey belt is set out in Annex 2. Firstly, it must be previously developed land and/or land in the Green Belt that does not strongly contribute to any of the purposes (a), (b) or (d) in paragraph 143. Secondly, grey belt excludes land where the application of policies relating to areas in footnote 7 to paragraph 11 d) i) (other than Green Belt) would provide a strong reason for refusing or restricting development.”

At DL/40, the Inspector concluded that the Site did not contribute strongly to Green Belt purposes (b) or (d) (which had been common ground at the appeal) or purpose (a) (thereby rejecting the Claimant’s case at the appeal). No challenge is made to that conclusion.  

At DL/41-42 (the focus of Ground 1), the Inspector said:  

“41.

National Landscapes are one of the protected areas referred to in footnote 7. However, it will be seen from the analysis set out earlier that I have found only limited and localised harm to the setting of the KDNL and no harm to the special characteristics of the views into or out of the Protected Landscape. Notwithstanding that the proposal will not conserve and enhance the landscape and its setting considered together, I do not consider the identified harm would provide a strong reason to refuse or restrict the development. 

42.

I am therefore satisfied that the site and the proposal meet the definition of grey belt set out in Annex 2 of the 2024 Framework.”

Under the next sub-heading, “Green Belt purposes across the area of the plan”, the Inspector found that the Development would not undermine the Green Belt purposes across the area of the plan, and so satisfied the second limb of paragraph 155(a) NPPF (see DL/43-47). Again, no challenge is made to that finding.  

The next heading, “need for a 24-hour truck stop”, addressed the question posed by paragraph 155(b) NPPF, i.e. whether there is a demonstrable unmet need for the type of development proposed; “in this case a 24 hour truck stop adjacent to the M26, part of the Strategic Road Network (SRN)”.

The Inspector considered need, including smaller alternatives to the Development and alternative sites: 

At DL/63-70, the Inspector considered D2’s Alternative Site Assessment (“ASA”). Overall, she concluded: 

“71.

For all the above reasons I conclude that the proposal would provide facilities which would accord with the Circular and would be of an appropriate type to meet the demonstrable unmet need for additional lorry parking on the SRN in Kent. The scheme would therefore accord with criteria (b) of paragraph 155.”

The Inspector then turned to paragraph 155(c) NPPF (sustainability of location) and found that the Site was sustainable (DL/72-76). 

The Inspector’s conclusion on main issue at DL/77-78 was that the proposal complied with paragraph 155 NPPF and was not inappropriate development in the Green Belt.

On main issue 3, the Inspector concluded that there would be harm to the character and appearance of the area as part of the setting of the KDNL, but that the harm would be “limited and localised” (DL/79-81).  

In terms of other considerations, the Inspector considered there would be some less than substantial heritage harm to two assets (DL/82-84), that there would be no unacceptable harm to the living conditions of adjacent occupiers (DL/85), and no harm to protected species and some biodiversity improvement (DL/86). 

Turning to the planning balance, the Inspector concluded that (i) while not all harmful effects of the scheme on the KDNL could be avoided, it could be minimised through mitigation measures; (ii) the character and appearance of the area in the immediate vicinity of the Site would be harmed and there would be minor and mid-range less than substantial harm to heritage assets; but (iii) the proposal would provide a range of important public benefits supporting the freight and logistics sector, improving safety on the STN and providing essential welfare facilities for lorry drivers. The economic, social and environmental benefits together carry very substantial and significant weight, and this outweighs the great weight associated with the cumulative harms to the KDNL, heritage assets and local area (DL/97-99). 

The general approach to challenges to appeals of the Secretary of State’s inspectors is set out in St Modwen Developments Ltd v. Secretary of State [2018] P.T.S.R. 746 at §§6-7:

“6.

In my judgment at first instance in Bloor Homes East Midlands Ltd. V Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the “seven familiar principles” that will guide the court in handling a challenge under section 288 . This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

“(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 W.L.R. 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 W.L.R. 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 Environment, Transport and the Regions [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] P.T.S.R. 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. in 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).”

Planning policies should be interpreted objectively, in accordance with the language used, read in its proper context. They should not be interpreted as if they were statutes or contracts: see Tesco Stores Ltd v. Dundee [2012] P.T.S.R. 983. 

In Rectory Homes Ltd v. Secretary of State for Housing Communities and Local Government [2021] P.T.S.R. 143 at §44, Holgate J explained that:

“Planning policies should be interpreted objectively in accordance with the language used, read in its proper context. Planning policies should not be interpreted as if they were statutory or contractual provisions. They are not analogous in nature or purpose to a statute or contract. They are intended to guide or shape practical decision-making and should be interpreted with that purpose in mind.  They have to be applied and understood by planning professionals and by the public to whom they are primarily addressed. Decision-makers are entitled to expect both national and local planning policy to be as clearly and simply stated as it can be and, however well or badly it may be expressed, the courts to provide a straightforward interpretation of such policy.”

Additionally, in Canterbury CC v. Secretary of State for Communities and Local Government [2019] P.T.S.R. 81 at §23, Dove J emphasised that the context of a policy includes its subject matter and the planning objectives it seeks to achieve, together with the wider policy framework within which it sits: 

“23.

In my view in the light of the authorities the following principles emerge as to how questions of interpretation of planning policy of the kind which arise in this case are to be resolved:  

(i)

The question of the interpretation of the planning policy is a question of law for the court, and it is solely a question of interpretation of the terms of the policy. Questions of the value or weight which is to be attached to that policy for instance in resolving the question of whether or not development is in accordance with the Development Plan for the purposes of section 38(6) of the 2004 Act are matters of judgment for the decision-maker.

(ii)

The task of interpretation of the meaning of the planning policy should not be undertaken as if the planning policy were a statute or a contract. The approach has to recognise that planning policies will contain broad statements of policy which may, superficially, conflict and require to be balanced in ultimately reaching a decision: see the Tesco Stores case [2012] PTSR 983, para 19 and the Hopkins Homes case [2017] PTSR 623, para 25. Planning policies are designed to shape practical decision-taking and should be interpreted with that practical purpose clearly in mind. It should also be taken into account in that connection that they have to be applied and understood by planning professionals and the public for whose benefit they exist, and that they are primarily addressed to that audience.  

(iii)

For the purposes of interpreting the meaning of the policy it is necessary for the policy to be read in context: see the Tesco Stores case, at paras 18 and 21. The context of the policy will include its subject matter and also the planning objectives which it seeks to achieve and serve. The context will also be comprised by the wider policy framework within which the policy sits and to which it relates. This framework will include, for instance, the overarching strategy within which the policy sits.

(iv)

As set out above, policies will very often call for the exercise of judgment in considering how they apply in the particular factual circumstances of the decision to be taken: see the Tesco Stores case, at paras 19 and 21. It is of vital importance to distinguish between the interpretation of policy (which requires judicial analysis of the meaning of the words comprised in the policy) and the application of the policy which requires an exercise of judgment within the factual context of the decision by the decision-taker: see the Hopkins Homes case, at para 26.” (emphasis added)

Sir Keith Lindblom SPT similarly summarised the proper approach to interpreting policies of the NPPF in R (Tesco Stores Ltd) v. Stockport MBC [2025] EWCA Civ 610 at §§35-38. The policy should be interpreted objectively in accordance with the language used, read in context. The Courts should respect the policy-maker’s choice of words in formulating the policy as its stands and avoid the temptation to infer terms that the policy-maker has not actually used: 

“35.

The distinction between policy interpretation and policy application is important (see the judgment of Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] 1 W.L.R. 1865, at paragraph 26). Interpretation of policy is an activity for judges. Policy-making obviously is not. Nor, of course, is the application of policy in the making of planning decisions. The meaning of the words in a policy produced by the Secretary of State or by a local planning authority is for the court to establish, as a matter of law (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 to 20, and the judgment of Lord Carnwath in Hopkins Homes, at paragraph 23). But the use of the policy in determining applications for planning permission and appeals is for the decision-maker, subject only to review by the court on public law grounds.

36.

Interpreting a planning policy ought not to be a difficult task, but straightforward (see the leading judgment in R. (on the application of Corbett) v Cornwall Council [2022] EWCA Civ 1069, at paragraph 19). It should not generally involve the kind of linguistic precision the court would bring to the interpretation of a statute or contract. Construing the language in the policy should not require it to be dismantled and reconstructed, or a gloss imposed upon it, or resort to paraphrase. One can expect the purpose of the policy to be clear from its own provisions, given their ordinary meaning and read in their context. Policies should be stated in plain terms, easy to understand for those affected by decisions made in accordance with them, and capable of being applied with realism and common sense. Mostly they are.

37.

The court should respect the policy-maker's choice of words in formulating the policy as it stands. As a general rule, the temptation to infer terms the policy-maker has not actually used should be resisted. The court will sometimes be able to conclude that the words of the policy mean exactly what they say, nothing more and nothing less. It should not hesitate to do this if it can.

38.

A more sophisticated approach has obvious risks. By going further than it needs in volunteering views of its own upon the meaning of a policy, the court may find itself drawn, unintentionally, towards the role of policy-maker. If a policy is ambiguous or incomplete, it is for the policy-maker to put that right, either by reformulating the policy when it can or by issuing guidance on its application. That is not a job for judges. Another risk is that the court – again without intending it – may obscure the true meaning of the words the policy-maker has used. This is liable to weaken the policy as a means of improving consistency in planning decisions. Many planning policies – including those in the NPPF – cover a wide range of circumstances. Many are framed in broad terms (see the judgment of Lord Carnwath in Hopkins Homes, at paragraph 24). Many require the exercise of planning judgment in their application. An interpretation tailored too closely to the facts of a particular case may not fit the facts of another (see the judgment of Holgate J., as he then was, in Gladman Developments Ltd. v Secretary of State for Communities and Local Government [2020] EWHC 518 (Admin), at paragraph 99, upheld in this court [2021] EWCA Civ 104). The policy itself could then be compromised and its use unduly constrained.”

In Mole Valley DC v. Secretary of State for Housing, Communities and Local Government [2025] EWHC 2127 (Admin) Choudhury J referred at [40] to the need not to treat guidance in the NPPF as if it were a statute.

In Monkhill Ltd v. Secretary of State for Housing, Communities and Local Government [2021] P.T.S.R. 1432, the Court of Appeal explained the meaning and effect of what is now paragraph 11 NPPF and footnote 7 (previously footnote 6). At §18, Sir Keith Lindblom SPT endorsed a series of propositions listed by Holgate J at first instance, including proposition (10) that the test is whether the application of one of the footnote policies provides a clear reason for refusing planning permission, not whether such a policy is merely engaged. At §37, he explained the rationale for the footnote 7 exclusion:  

“37.

The “tilted balance”, or positive presumption, under paragraph 11(d)(ii) is not available in every case where there are “no relevant policies” of the development plan or the “most important policies” in the plan are “out-of-date”. It is deliberately disapplied in the situation provided for in paragraph 11(d)(i), where policies of the NPPF that “protect areas or assets of particular importance”—the footnote 6 policies—are engaged,  applied and found to justify planning permission being withheld (see the first instance judgment in Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] PTSR 1031, at para 28). Otherwise, the “tilted balance” could work against the protection afforded by those policies and undermine them. This would not only be hostile to the evident objective of the policy in paragraph 11(d)(i). It would also be inimical to the explicit strategy of the NPPF itself for “sustainable development”. (emphasis added)

The Claimant’s first ground is that the Inspector erred in her interpretation of the definition of Grey Belt at DL/41 by looking at whether the consideration of the footnote 7 policies would provide a strong reason for refusing the particular development under consideration, rather than considering development generally on the Site.

The Claimant submits that the words of the Grey Belt definition focus entirely on the land and not on the particular development applied for. There is no distinction drawn in that definition between the planning policy stage and the development control stage, and it therefore follows from the words that the same approach should be taken at both stages, i.e. to consider the impact of development generally. Dr Williams submits that at “both stages it is the task of the decision maker to decide whether footnote 7 provides a strong reason for refusing development generally”.

On a textual analysis, Dr Williams submits that there is one definition in the NPPF and both limbs refer to the status of the land and not to “the” development. If the SoS’s interpretation were correct, some words would have to be applied in the policy making context and some in the development control context, and it would be very unclear which is which. Whereas the simple interpretation is that in deciding whether the land meets the Grey Belt definition, the focus is on the land and not the development, and the NPPF is applied in the same way to both.

Dr Williams also relies on the use of the conditional tense in the last sentence of the Grey Belt definition, “would provide a strong reason….”, as supporting his analysis that this is a test in the policy which does not consider the particular development.

He submits that the SoS’s reading is strained and unnatural and does not follow from the natural reading of the words. He relies on Tesco v Stockport BC[2025] EWCA Civ 610 and the general rule of applying the words themselves and not inferring words.

He points to the fact that at the appeal hearing of 9 and 10 January 2025 there was a consensus between the parties that the interpretation now being advanced by the Claimant was the correct one. Although he accepts that the interpretation of policy is a matter for the Court, he submits that the fact that all the parties interpreted the policy in this way indicates that it is the natural reading.

Further, he submits that the Inspector did not understand the interpretation now being advanced by the SoS, because in DL/41 she referred to a strong reason to refuse or restrict development. She therefore did not appear to appreciate the distinction now asserted by the SoS between “restrict” (being the relevant concept in the policy-making context) and “refuse” (relevant in the development-control context).

Dr Williams says that the planning purpose supports his interpretation. He argues that the policy of protecting the Green Belt has not changed in the revisions to the NPPF. Therefore, a restrictive interpretation remains appropriate in order to protect the Green Belt.

On this point, Mr Ranatunga on behalf of the LPA strongly supports the Claimant’s argument. He argues that Grey Belt is an additional exception to the Green Belt test of requiring very special circumstances, see NPPF paragraph 153. Mr Ranatunga submits that, as an exception, Grey Belt should be construed narrowly in order to meet the overarching policy of protecting the Green Belt. He therefore submits that the approach of Choudhury J in Mole Valley to assume a permissive approach to the policy does not apply here. This case turns on the definition of Grey Belt and is thus a prior question to that being considered in Mole Valley.

There is nothing in the Green Belt policy in the NPPF to suggest that the designation of land as Grey Belt turns on the particular proposal rather than the nature of the land. Grey Belt is a “threshold question” that goes to the status of the land, and as such it is appropriate for a decision-maker to take a broad-brush, site-based approach, rather than consider the specific form of the development being sought.

If the SoS is correct then the decision-maker has to undertake a very complex analysis, shifting between the nature of the land and then the specific form of development. The status of the land becomes variable and uncertain depending on the specific proposal. Mr Ranatunga argues that the person to whom the policy is addressed (whether decision maker, LPA or planning consultant) will be unclear on the SoS’s interpretation as to what task they are supposed to be undertaking.

Mr Moules KC on behalf of the SoS submits that the Claimant’s interpretation of the NPPF is wrong. It is based on an overly forensic approach to the use of a single word (“development” as opposed to “the development”) in the definition of Grey Belt. Contrary to the authorities cited above, the Claimant’s interpretation is not properly informed by the purpose and context of the policy context of Grey Belt. 

He relies on the caselaw set out above and in particular Dove J’s analysis in Canterbury CC at §23 that policy must be read in its context and with regard to the overarching strategy. In Monkhill, the Court of Appeal at §37 demonstrated the importance of interpreting the NPPF and footnote 7 (then footnote 6) with regard to the overarching policy purpose.

The purpose of the introduction of the Grey Belt concept is apparent from NPPF paragraph 155 – it is to release poorly performing Green Belt land where there is no strong reason to refuse development on the grounds of the particularly important policies referred to in footnote 7.

He also refers to Choudhury J’s comments in Mole Valley at [70] to the introduction of Grey Belt being a permissive policy change, which should not be “potentially hamstrung”.

Here there is an unchallenged finding by the Inspector that the three relevant purposes of the Green Belt in NPPF paragraph 143 are not undermined, see DL/40, and that the development does not conflict with footnote 7 on the National Landscape, see DL/37-38. An interpretation of the policy which still leads to a refusal in those circumstances, and is based on a hypothetical development, plainly would undermine the purpose of the Grey Belt policy.

In my view the Inspector in DL/41 was correct to apply the footnote 7 test to the development that was the subject of the application and not to all development, or any hypothetical development.

Firstly, the Claimant takes a highly linguistic analysis, which essentially turns on the fact that the word “the” is not included at the end of the Grey Belt definition. The caselaw is clear that although the interpretation of policy is a matter for the Court, it should not be interpreted as if it were a statute or a contract.

However, even before I come to consider the policy purpose, I am not convinced that the textual analysis points in the Claimant’s favour. It is clear from the definition section of the NPPF that the Grey Belt concept applies to both plan-making and decision-taking, because of the reference to “refusing or restricting development” in the second sentence. Decision-taking necessarily focuses on the application, and a decision-maker has a binary choice to either grant or refuse, albeit granting will include conditions. In decision-making a “strong reason for refusing… development” would naturally be expected to depend on what development was being applied for, rather than making a hypothetical assessment of the impact of any or all developments that could possibly come forward. Equally, the reference to “restricting development” is one that naturally falls within a plan-making process, where there might be a strong reason to restrict future development, or limit the forms of appropriate development on the site. That is going to be a site or land-based analysis for policy-making purposes. It will generally depend on the policymaker considering a range of different potential development types in order to decide whether and to what extent policy should “restrict” them. In that context the second sentence is necessarily dealing with two different processes.

Without considering the policy purpose of the introduction of the Grey Belt, it would in my view be an odd and difficult exercise for a development control decision-maker to be trying to assess the impact of hypothetical developments on footnote 7 policies. For development control purposes the acceptability or otherwise of that impact will fundamentally turn on the impact of the development applied for. This is particularly clear with heritage and habitats impacts, where some developments might have minimal impact, while others provide a strong reason for refusal. It would be odd to require an LPA or Inspector to undertake that kind of hypothetical exercise.

Mr Ranatunga submitted that the planning consultant to whom the policy is directed would not understand the exercise that the SoS says should be undertaken. However, in my view, the exercise is not particularly complex, and it has the benefit of not involving trying to assess the impact of a hypothetical development.

Secondly, the SoS’s interpretation is strongly supported by the policy purpose of the introduction of the Grey Belt. That purpose, as set out in NPPF paragraph 155, is to allow the release of Green Belt land where it does not strongly contribute to the purposes of the Green Belt; and where there is no strong reason for refusal by reference to the important policy safeguards in footnote 7. It is obviously intended to lead to the release of some additional Green Belt land to meet development needs. It is a further exception to Green Belt policy, but that is not a reason to interpret the policy in a restrictive manner. The interpretative principle is to consider the words in context and with regard to the policy purpose.

I agree with Mr Moules KC that the Claimant’s interpretation of the policy leads to a conclusion which is contrary to its clear purpose. In this case the Inspector found that the Site did not strongly contribute to the Green Belt purposes in NPPF paragraph 143(a), (b) or (c), and that finding is not challenged. Further, she found that footnote 7 did not provide a strong reason for refusing the Development. A conclusion that, despite those findings, planning permission should be refused is plainly contrary to the purpose of the introduction of the Grey Belt into the NPPF. It is not an answer that the developer can fall back on broader Green Belt policies and show very special circumstances. The point of the introduction of the Grey Belt is to avoid that policy requirement.

The fact that all the parties at the Inquiry adopted the Claimant’s interpretation is, with the benefit of hindsight, somewhat surprising. However, as a point of legal principle it is irrelevant. The interpretation of planning policy is a matter for the Court and is not capable of being agreed between the parties. There is no dispute that this is an interpretation and not an application of policy issue.

Mr Katkowski KC pointed out that the Green Belt has had a settled meaning in national policy for many years. The concept of the Grey Belt emerged fairly suddenly in December 2024 with little guidance on how to apply the tests. The Inspector’s hearing was only four weeks later, on 9 and 10 January 2025, and the written submissions were made on 7 January 2025. It is therefore perhaps rather less surprising that the correct interpretation of the last sentence of the definition was confused.

For all these reasons I conclude that the Inspector made no error in her interpretation of the policy. She was correct to assess the footnote 7 impacts against the development applied for and not development in general for the purposes of the Grey Belt policy definition.

The Claimant argues that the Inspector misdirected herself with regard to the extent of the need for the proposal, and in particular whether there was a need for the fuel station element of the application. There is no dispute that under NPPF paragraph 155 it was necessary for Moto to establish that there was an unmet need for the Development.

Central to Moto’s need case was the Department of Transport Circular 01/22 “Strategic road network and the delivery of sustainable development”. That establishes the recommended distance between motorway facilities and makes clear that for HGV parking facilities that distance is 14 miles.

Under the heading “location”, the Circular sets out a sequential order of preference:

“Location

84.

On-line (between junctions) service areas are more accessible to users of the SRN [Strategic Road Network] and as a result more conducive to encouraging drivers to stop and take a break. They also help to avoid an increase in traffic demand at junctions with all-purpose roads.

85.

Therefore, in circumstances where competing sites are under consideration and on the assumption that all other factors are equal, new facilities must be provided at on-line locations.

86.

However, where an on-line service area cannot be delivered due to planning, safety, operational or environmental constraints, the development of a site that shares a common boundary with the highway at a junction with the SRN, and which provides the mandatory requirements to be eligible for signing as set out in table 1 of Annex A, is to be preferred to the continued absence of facilities.

87.

The company will not support proposals for roadside facilities adjacent to a junction with a motorway that would not meet the minimum requirements for signing as shown in Table 1, as these can prevent or reduce the provision of more appropriate facilities.

88.

An exception to these location requirements is permitted for truckstops ^{[footnote 27]} that would be within 2 miles of a junction on the SRN, where these would meet the minimum requirements for signing and would not direct traffic through an established residential area.”

Footnote 27 reads “including facilities which provide services to general motorists as a secondary activity”.

The Circular then deals with “eligibility for signing”:

“89.

The minimum requirements for roadside facilities to be eligible for signing from the SRN are set out in table 1. For the purpose of managing traffic anywhere in the United Kingdom, the requirements set out in table 1 may be temporarily waived by the company at any roadside facility.

90.

The signing of roadside facilities and signing arrangements within sites must comply with the TSRGD or its replacement, while further guidance on the authorisation, funding, installation and maintenance of signs is available from the company. Only in exceptional circumstances will nonprescribed signs be appropriate, and these must be authorised by the Department for Transport.”

Signage is critical to the functioning of the facility. Therefore, in practice, the eligibility for signage requirements becomes a cypher for the form of the development that is needed to meet the terms of the Circular.

Annex A to the Circular is a “Roadside facilities table”, which sets out the minimum requirements for roadside facilities to be eligible for signing from the SRN. The types of facilities include Motorway Service Areas, Motorway Truck-stops, and Truck-stops signed from the SRN. The table divides facilities into “M” for mandatory and “P” for permitted. The section on Truck-stops signed from the SRN has a reference back to paragraph 88 of the Circular, as set out above. In this table, fuel provision is considered mandatory for a Motorway Service Area and Motorway Truck-stop, and permitted (but not mandatory) for a Truck-stop signed from the SRN.

There are three types of facilities envisaged within the Circular at paragraphs 84-88: Firstly, a paragraph 84 online facility is one with a slip road directly off the motorway. Secondly, a paragraph 86 facility is one that shares a common boundary with the highway with access from a roundabout. Thirdly, a paragraph 88 facility is a truck stop within 2 miles of a junction which does not take traffic through a residential area.

Moto’s ASA assumed that the proposal was a paragraph 88 facility. Therefore, a fuel station would not have been a mandatory requirement. However, by the end of the hearing, in his Closing, Mr Katkowski KC argued that this was actually a paragraph 86 facility. The Claimant maintained that the proposal was a paragraph 88 facility and that there was no need for a facility of the type and scale proposed.

The Inspector considered the need for the proposal in very considerable detail. She unequivocally found a need for the scale of parking and the accommodation block proposed, and the Claimant does not challenge those findings.

In respect of the need for the fuel station, she said at DL/62 (see above) that it would be “an essential part of the proposal and a mandatory requirement to comply with the Circular”.

The Claimant’s essential argument under Ground Two is that the Inspector misdirected herself because the fuel station was not a mandatory requirement under the Circular. Rather, the proposal was a paragraph 88 facility and, as such, the fuel station was only a “permitted” requirement in the Table, rather than a mandatory one. The Inspector therefore erred in her interpretation of the Circular, because she treated the fuel station as being a mandatory requirement. The Claimant relies on Moto’s ASA, as referred to above, which itself assumed that the development was a paragraph 88 facility.

Further, the Claimant submits that this was a material error because the need for a truck stop of this scale was a principal controversial issue and was critical to the analysis under NPPF paragraph 115(b). This was not therefore simply a matter of planning judgement for the Inspector, but rather a policy requirement which she misinterpreted.

Mr Grant accepts that the Inspector had to decide whether there was a need for the development proposed. She reached an unchallenged conclusion that there was a need for a facility for 197 HGVs and an amenity building of 1,100m². That was sufficient for her to rationally conclude that NPPF paragraph 155(b) was met. She did not then need to decide whether the facility could be disaggregated and whether some elements, e.g. the fuel station, were not “needed”. There was no obligation upon her to determine whether the proposal could meet the need test without a fuel station.

Having found that there was a need for parking for 197 HGVs, she also found that there was a need for them to be able to refuel at the facility. This is clear from the middle of DL/62, where she refers to unacceptable on-site conflict and unnecessary additional lorry movements if the HGVs had to travel to a different facility to refuel.

Further, it is apparent that the Inspector found that the application was for a Motorway Truck-stop, i.e. a paragraph 86 facility, and that a fuel station was therefore a mandatory requirement under the Circular. At DL/48 she refers to the proposal as “a 24 hour truck stop adjacent to the M26, part of the Strategic Road Network”. At DL/61 she said that the primary purpose of the proposal would be to serve drivers using the motorway as distinct from other parts of the SRN, and she reiterates this at DL/62.

Therefore, the Inspector appropriately addressed the issue of need and made no error of law.

In my view the Defendant is clearly correct on Ground Two, for three independent reasons.

Firstly, it is apparent from reading the DL as a whole that the Inspector considered the facility to fall under paragraph 86 of the Circular. This can be seen both from her conclusion in DL/62 that it was a mandatory requirement of the Circular, and from her description of the Site at DL/48.

That conclusion follows in my view from any reasonable analysis of the location of the Site. It “shares a common boundary with the highway at a junction with the SRN” (the words of paragraph 86 of the Circular). Although this is a matter of planning judgement for the Inspector, the factual position cannot be contested and the Site as a matter of fact does share a boundary with the highway at a junction with the SRN. It would have been extremely difficult to reach any conclusion other than that this was a paragraph 86 facility. Therefore, the conclusion that the fuel station was a mandatory requirement under the Circular was correct and there was no misdirection.

Secondly, I agree with Mr Grant that there was no requirement on the Inspector to consider the need for each element of the proposal separately. The requirement in NPPF paragraph 155(b) is to establish need for the “type” of development proposed, not each component thereof. The Inspector could have decided that the proposal was disproportionately large, or had unnecessary elements, but she did not do that on the facts of the case. That was a planning judgement for her.

Thirdly, and in any event, the Inspector found that the fuel station was an essential part of the facility in DL/62, for the reasons that she set out therein. Her reasons are both clear and wholly rational. She concluded that the fuel station would avoid the situation of lorries stopping at the facility but then having to enter a different facility in order to refuel. That would create both on-site conflict with smaller vehicles at the other sites, and additional unnecessary vehicle movements on the SRN. This was a conclusion that was open to the Inspector as a matter of planning judgement.

For these reasons I reject Ground Two.