Developing in the Green Belt
Obtaining planning permission for development in the Green Belt is a tricky business. The Green Belt is, with good reason, highly protected by planning policy. In order to get permission to develop you need to be able to show that there are special circumstances to justify it. But what circumstances will be special enough?
The recent case of SB Herba Foods Limited v (1) Secretary of State for Communities and Local Government (2) South Cambridgeshire District Council [2008] EWHC 3046 (Admin) gives some helpful guidance as to how to apply the correct test in determining whether or not there were sufficiently special circumstances to warrant permission to develop in the Green Belt.
The facts
Since 1988 SB Herba Foods Limited (“Herba”) have operated a factory which is a former grain silo on the edge of the village of Fulbourn in Cambridgeshire. The factory is outside of but extends up to the very edge of the Cambridge Green Belt. Herba applied for planning permission to extend the factory into the Green Belt. The proposed extension would be within the grounds of the existing factory and Herba therefore argued that in planning terms it formed brown field land.
Cambridgeshire District Council refused planning permission. Herba appealed against the decision. On appeal the Inspector dismissed the appeal. Herba challenged that decision and brought the case to the High Court.
The Law
Section 38(6) of the Planning and Compensation Act 2004 requires any decision on whether to grant planning permission or not to be taken in accordance with the development plan unless material considerations indicate otherwise.
At a national level Planning Policy Guidance Note 2 gives advice on Green Belts. At paragraph 3.1 it states “The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances”. At paragraph 3.2 it states “Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”.
The Court’s decision
On appeal the Inspector concluded that the proposed extension would constitute inappropriate development and the High Court agreed with that decision. Therefore, following PPG2, it should not be permitted except in very special circumstances.
The Inspector then went on to consider whether very special circumstances existed in this case. The Court agreed that this was the appropriate next step, as if no such circumstances existed, then the development could not be permitted.
The Inspector then looked at all the circumstances of the case individually to see whether each amounted to very special circumstances and concluded in each instance that they did not as none of the circumstances were considered to be unusual and therefore special. The Inspector then looked at all the circumstances together and concluded that none of them were very special and the combination of these factors would not be particularly unusual and therefore he decided they did not outweigh the harm to the Green Belt.
In doing so the Court held that the Inspector had not taken the right approach. The Inspector was right to consider all the circumstances of the case but he should not have required each of the various elements to be unusual in order for them to be capable of forming very special circumstances. The Court found that matters which could in one sense be considered commonplace given that they would be felt by most people, for example respect for one’s home, could in fact be sufficiently special as to warrant protection. The Inspector should instead have considered each factor individually and cumulatively to decide whether there were any other considerations which clearly outweighed the harm to the Green Belt. If there were then special circumstances would exist. To do this exercise the Inspector had to use his judgment in assessing the quality of the factors involved in the case according to planning principles and considerations in order to attach the appropriate weight to each consideration.
This article was first published in the Property Law Journal on 2 February 2009.
