Brentwood Borough Council v Secretary of State for Communities & Local Government & Anor

Permission for inappropriate development in the Green Belt requires a two-stage approach. The decision-maker must first ask whether the harm caused by inappropriateness, together with any other harm, is clearly outweighed by other considerations. The decision-maker must then ask whether the circumstances relied on are objectively capable of being described as very special. A factor does not become very special merely because it outweighs Green Belt harm. The requirement constrains the otherwise broad planning discretion, and the conclusion that circumstances are very special remains reviewable on Wednesbury grounds.

Brentwood Borough Council challenged, under Town and Country Planning Act 1990, section 288, an inspector’s decision granting temporary permission for five mobile homes on agricultural Green Belt land. The site was occupied by gypsies and travellers who had no access to alternative authorised sites. The Secretary of State consented to the decision being quashed, accepting that the inspector had treated the existence of circumstances which outweighed Green Belt harm as sufficient to constitute very special circumstances. The remaining respondents opposed the challenge. The central issue was whether the inspector had applied the correct legal test under paragraphs 3.1 and 3.2 of Planning Policy Guidance 2.

1. Appeal allowed. The inspector’s decision was quashed. A further inquiry was expected, at which the law governing very special circumstances would have to be applied.
2. Paragraphs 3.1 and 3.2 of Planning Policy Guidance 2 require two questions. First, whether the harm to the Green Belt by reason of inappropriateness and any other harm is clearly outweighed by other considerations. Secondly, whether there are circumstances which can reasonably be described as very special.
3. The expression “very special circumstances” is not merely a label for the result of a balancing exercise. The circumstances relied upon must be very special in character before they can justify permission, whatever weight they carry. They must be objectively capable of being so described. There is no prescribed list, and the assessment depends on the particular circumstances, but the constraint imposed by the policy is real.
4. The inspector gave considerable weight to unmet need, the absence of alternative sites, the children’s education, access to medical services and the risk of unauthorised encampment. Those matters could be material considerations. However, she treated them as very special circumstances only because, taken together, they outweighed the environmental harm. That was the unlawful approach identified in R (Chelmsford Borough Council) v First Secretary of State [2003] EWHC 2978 (Admin).
5. The reasoning in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 did not alter the requirement. That case illustrated circumstances which an inspector could lawfully regard as very special because the reasoning clearly explained why the particular combination of factors justified the conclusion.
6. The court indicated that funding for advocacy services at the further inquiry should be authorised under Access to Justice Act 1999, section 6(8). Costs were payable by the Secretary of State up to 21 November 2007, with a provisional wasted-costs application against the second respondents’ solicitors to be dealt with on paper.

The judgment was a first-instance statutory challenge to a planning inspector’s decision. The inspector had granted temporary planning permission in April 2007. The High Court quashed that decision on Brentwood’s challenge under section 288 of the Town and Country Planning Act 1990.