Dowmunt-Iwaszkiewicz v First Secretary of State & Anor

In a green-belt case, contamination may contribute to very special circumstances justifying inappropriate development, but it does not automatically do so. The decision-maker must confront the circumstances of the particular site and explain the necessary balancing exercise. The reasons must show how the public interest in remediation was weighed against the harm caused by the proposed development and the substantial weight given to green-belt harm. A decision is unlawful where its reasoning leaves substantial doubt whether the relevant policy was understood or applied rationally, and the claimant is substantially prejudiced by that deficiency.

The claimant sought outline planning permission for residential development of a contaminated former mushroom farm in the green belt. Gedling Borough Council refused permission. On appeal, the inspector accepted that remediation would be in the public interest but dismissed the appeal, concluding that the contamination did not constitute very special circumstances.

The claimant applied under Town and Country Planning Act 1990, section 288, challenging the inspector’s treatment of the very special circumstances issue and his approach to the openness of the green belt.

1. Very special circumstances. The inspector did not misinterpret paragraph 20 of Circular 02/2000. That paragraph concerns regulatory action where contamination causes unacceptable risks on land unsuitable or unscheduled for redevelopment. It recognises that green-belt land may be unsuitable for development. The inspector was therefore entitled to state that contamination causing unacceptable risks was not, by itself, justification for unsuitable development.
2. The inspector’s reference to contamination “on this site” showed that he was not applying a general rule that contamination could never amount to very special circumstances without an additional factor.
3. Adequacy of reasons. Applying the principles in South Bucks District Council v Porter (2) [2004] UKHL 33, [2004] 1 WLR 1953, the inspector was required to give intelligible and adequate reasons addressing the principal controversial issues. His decision acknowledged the public interest in removing the asbestos risk and the absence of an obvious alternative green-belt use, but did not explain why the contamination on this site failed to amount to very special circumstances. In particular, it did not indicate that he had weighed the remediation benefit against the impact of the proposed development on the green belt.
4. That omission created substantial doubt whether the necessary balancing exercise had been carried out and substantially prejudiced the claimant, who could not tell whether the refusal turned on the severity of the contamination risk, the degree of green-belt harm, or both.
5. The inspector’s decision was quashed. The subsidiary challenge concerning openness was not made out. The first defendant was ordered to pay the claimant’s costs, subject to assessment if not agreed, with a Legal Services assessment in any event.

The judgment describes the claimant’s planning application, the council’s refusal, and the inspector’s dismissal of the planning appeal. No judicial appellate history is stated.