Wychavon District Council v Secretary of State for Communities & Local Government & Ors

The requirement that inappropriate Green Belt development be justified by “very special circumstances” does not impose two rigidly separate tests. The decision-maker must determine whether the harm arising from inappropriateness and any other harm is clearly outweighed by other considerations, so as to amount to very special circumstances.

“Special” is a qualitative description of weight, not a requirement of rarity. Ordinary factors may combine to satisfy the policy. The threatened loss of a gypsy family’s home, without an immediate alternative, is legally capable of carrying very special weight. The resulting balance is primarily a matter of planning judgment. A court should intervene only for legal misdirection, irrationality or another established public law error.

A planning inspector granted Mr and Mrs Butler temporary permission to station a mobile home and touring caravan on Green Belt land. He found that the development was inappropriate and harmful, but concluded that the prospect of new gypsy sites becoming available, the unmet need for such sites and the family’s lack of any immediate alternative clearly outweighed that harm.

Mitting J quashed the decision. He held that paragraph 3.2 of Planning Policy Guidance Note 2 required a two-stage test and that the three commonplace considerations identified by the inspector could not amount to very special circumstances.

The applicants appealed. The principal questions were whether paragraph 3.2 imposed that two-stage test, whether the inspector’s conclusion was irrational, and whether he had overlooked the more flexible policy applicable to rural sites outside the Green Belt.

1. Appeal allowed. The inspector’s decision granting temporary planning permission was restored. Carnwath LJ delivered the judgment, with which Wilson LJ and the Master of the Rolls agreed.

2. Paragraph 3.2 of Planning Policy Guidance Note 2 did not impose a rigid division between identifying circumstances that were independently “very special” and deciding whether other considerations clearly outweighed Green Belt harm. The considerations performing those functions could be the same or overlap. The correct approach began with the premise that inappropriate development was harmful by definition and asked whether that harm, together with any further harm, was clearly outweighed by other considerations so as to amount to very special circumstances.

3. The word “special” required a qualitative judgment about planning weight, rather than a quantitative inquiry into rarity. A factor did not become legally incapable of being special merely because it was commonplace. Ordinary considerations could acquire very special weight in combination. In the light of the special position of gypsies, the 2006 policy and European Convention on Human Rights protections, the threatened loss of a gypsy family’s home without any immediate replacement was capable in law of being a very special factor.

4. The balance involved judgments at both general and individual levels. Relevant individual matters could include need, health, education, local environmental effects and the temporary duration of development. National policy did not exclude personal circumstances from consideration. The inspector was entitled to assess their weight on the evidence and his knowledge of the site.

5. The inspector’s conclusion was not irrational. He differentiated the weight of the family’s employment, health, education and accommodation needs. He permissibly concluded that those matters did not justify permanent permission but, when combined with the expected allocation of sites within three to five years, justified temporary permission.

6. The authority had not shown that greater flexibility for rural sites outside the Green Belt was a substantial issue before the inspector or that it undermined his finding that a wider search offered no better prospect. A failure expressly to address that matter was therefore not a legal defect.

7. Planning inspectors retain substantial evaluative discretion. Different inspectors may lawfully reach different factual conclusions, and a generous decision on particular facts creates no binding precedent. Courts should respect specialist planning judgments unless a legal misdirection or irrationality is clearly demonstrated.

1. Court of Appeal (Civil Division): The appeal was allowed. The order quashing the inspector’s decision was displaced, and the inspector’s grant of temporary planning permission was restored: [2008] EWCA Civ 692.

2. Administrative Court: Mitting J had allowed the council’s challenge and quashed the planning inspector’s decision for misinterpreting Green Belt policy and reaching a perverse conclusion. No citation for that judgment is stated.

3. Planning inspector: The applicants’ planning appeal was allowed to the extent of granting temporary permission for five years.