Court of Appeal hands down judgment in Redhill on…

The Court of Appeal (Sullivan, Tomlinson and Lewison LLJ) today gave their reasons for allowing 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 Patterson J. 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 overturned that decision effectively reinstating the River Club Approach.

Sullivan LJ said:

“Paragraph 88

18. There is no dispute that the words in paragraph 88 should not be construed in isolation, and must be construed in the context of the Framework as a whole, but Mr. Maurici QC and Mr. Whale for the Appellants rightly submit that the starting point must be the words of the policy in paragraph 88. Not only are the words “any other harm” in the second sentence of that paragraph unqualified, they are contained within a paragraph that expressly refers, twice, to “harm to the Green Belt.” When the policy wishes to restrict the type of harm to harm to the Green Belt it is careful to say so in terms.

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

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

20. It is common ground that all “other considerations”, which will by definition be non-Green Belt factors, such as the employment and economic advantages referred to by the Inspector in her decision in this case, must be included in the weighing exercise. On the Judge’s approach, if an inappropriate development in the Green Belt is beneficial in terms of the appearance of the landscape, visual amenity, biodiversity or, presumably any other matter relevant for planning purposes such as the setting of a listed building, or transportation arrangements, it must be weighed in the balance when deciding whether “very special circumstances” exist; but if the inappropriate development is harmful to any of those non-Green Belt considerations, that harm must not be weighed in the balance when deciding whether “very special circumstances” exist. I accept the Appellants’ submission that this imbalance is illogical. If all of the “other considerations” in favour of granting permission, which will, by definition, be non-Green Belt factors, must go into the weighing exercise, there is no sensible reason why “any other harm”, whether it is Green Belt or non-Green Belt harm, should not also go into the weighing exercise.

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

The wider policy context

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

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

The judgment can be found here.

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.