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Court of Appeal overturns judgment in Redhill

DATE: 09 Oct 2014

The Court of Appeal (Sullivan, Tomlinson and Lewison LLJ) today allowed appeals by the Secretary of State for Communities & Local Government, Tandridge District Council and Reigate & Banstead Borough Council against the judgment of Patterson J. in Redhill Aerodrome Limited v Secretary of State for Communities and Local Government, Tandridge District Council, Reigate and Banstead Borough Council [2014] EWHC 2476 (Admin).

The case concerned the proper interpretation of the words “any other harm” when considering inappropriate development in the Green Belt under para. 88 of the National Planning Policy Framework (NPPF).

Paras. 87 and 88 of the NPPF provide: 

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” 

Prior to the NPPF para. 3.2 of PPG2 provided “… Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify the inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations…”. 

In River Club v Secretary of State for Communities and Local Government [2009] EWHC 2674 Frances Patterson QC sitting as a Deputy High Court Judge held: 

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

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

In the Redhill case she held that the meaning of the words “any other harm” had, in the context of the NPPF, changed and confined consideration to non-Green Belt harms, she thus declined to follow her own previous decision in River Club. 

The Court of Appeal today overturned that decision effectively reinstating the River Club Approach. The Court formally allowed the appeals and indicated that its full reasons would be given later. 

James Maurici QC appeared for the Secretary of State (leading Richard Kimblin).

Stephen Whale appeared for the councils.

Christopher Katkowski QC and Alistair Mills appeared for Redhill Aerodrome.