Kilmartin Properties (TW) Ltd v Tunbridge Wells Borough Council

In assessing inappropriate development in the Green Belt, the decision-maker must weigh the harm caused by inappropriateness and any other harm against the claimed very special circumstances. An officer’s report need not use perfect language if, read as a whole, it shows that the relevant policy issues were understood and that the decision would not have differed.

Separate Green Belt criteria, including height and footprint, must be addressed distinctly. A breach may nevertheless be justified by very special circumstances. Comparative assessment of alternative sites is generally required only in exceptional cases involving significant or conspicuous adverse effects. Environmental effects and mitigation may be dealt with by condition where the information is sufficient and the remedial measures are modest, achievable and established.

The claimant sought judicial review of the Council’s grant of planning permission for redevelopment of Pembury Hospital as a new District General Hospital in the Green Belt. The claimant owned a competing site at Knights Park and challenged the permission on three grounds.

1. The officer’s report allegedly misunderstood Green Belt policy, including the height and footprint criteria and the requirement for very special circumstances.
2. The Council allegedly failed to compare the Pembury and Knights Park sites.
3. The environmental statement allegedly failed adequately to address possible ground contamination and mitigation.

The central issues were whether those matters disclosed errors of law sufficient to justify quashing the planning permission.

1. The application was dismissed. The shortcomings in the officer’s report did not justify quashing the planning permission, individually or cumulatively.
2. Under PPG2, inappropriate Green Belt development is harmful by definition. Very special circumstances cannot exist unless that harm, together with any other harm, is clearly outweighed by other considerations. The report did not expressly identify the harm from inappropriateness, but its recognition that very special circumstances were required implicitly addressed that harm.
3. The height and openness criteria in paragraph C4 of Annex C were distinct. The proposed buildings were taller than the existing buildings, so the height criterion was not met. The officer had nevertheless correctly explained why the siting and topography meant that the development would not have a greater impact on Green Belt openness. Those matters could constitute very special circumstances justifying the breach. The report’s mistaken statement that the height criterion was satisfied was therefore not material.
4. The Council was entitled to consider the Pembury application on its own merits. Comparative assessment of alternative sites is relevant only in exceptional circumstances, particularly where the proposed development would have significant, inevitable or conspicuous adverse effects. The decision not to undertake that assessment was a matter of planning judgment and was not Wednesbury unreasonable.
5. The environmental statement contained sufficient information about potential contamination and mitigation. The remedial measures were modest, plainly achievable, and established and uncontroversial. It was therefore lawful to address the matter through condition 23, and the statutory requirements were satisfied.