Bravebyte Ltd (t/a London Equestrian Centre), R (on the application of) v First Secretary Of State & Anor

In a planning challenge, an Inspector must distinguish between development that is inappropriate in Green Belt policy terms and development that is merely harmful to Green Belt visual amenity. The former requires very special circumstances; the latter is assessed through the ordinary planning balance. An error in classifying development as inappropriate may therefore infect the entire decision, particularly where the Inspector applies the higher test of essential need. Visual impact must also be assessed against the realistic permitted alternative, rather than an inappropriate or artificial comparison.

The claimant challenged under section 288 of the Town and Country Planning Act the Secretary of State’s decision refusing retrospective planning permission for an all-weather outdoor exercise yard at an equestrian centre. The Inspector treated the proposal as inappropriate development in the Green Belt, relying on paragraph 3.4 of PPG2, and found no very special circumstances. He also found material harm to an Area of Special Character.

The Secretary of State conceded that reliance on paragraph 3.4 was erroneous, but argued that the decision would inevitably have been the same because of visual harm and conflict with landscape policies. The central issue was whether the error materially affected the Inspector’s reasoning and conclusion.

1. Application allowed and decision quashed. The Inspector’s decision was materially flawed.
2. Paragraph 3.4 of PPG2 concerned the construction of new buildings in the Green Belt and did not provide the correct basis for treating the outdoor exercise yard as inappropriate development. Paragraph 3.1 distinguished the policy circumstances in which development was inappropriate from the separate question of visual harm.
3. That distinction had practical significance. Inappropriate Green Belt development attracted a strong presumption against it and required justification by very special circumstances. Development that was not inappropriate but was visually harmful was subject to the ordinary planning balance under section 54(a) of the Town and Country Planning Act.
4. The Inspector’s error permeated his approach. He assessed whether the outdoor facility was essential to the future running of the establishment as a whole, a demanding test appropriate to very special circumstances. The relevant issue, if the proposal was assessed as ordinary visually harmful development, was the degree of need for the permitted outdoor exercise area weighed against the visual harm caused by changing its surface.
5. The Inspector’s reasoning did not establish that the Area of Special Character issue independently justified refusal. His visual comparison was also flawed because it compared the artificial surface with natural grass, rather than with the realistic grass surface, which would become a quagmire in winter and excessively hard in summer through use by horses and ponies.
6. The decision was quashed. The First Respondent was ordered to pay the claimant’s costs, summarily assessed at £6,800 including VAT.

The planning application was not determined by the local planning authority. The Inspector considered the matter on written representations and refused retrospective permission. The Administrative Court allowed the statutory challenge and quashed the Inspector’s decision.