SB Herba Foods Ltd. v Secretary of State for Communities and Local Government & Anor

When assessing whether very special circumstances justify inappropriate development in the Green Belt, the decision-maker must undertake a qualitative assessment of the weight of the relevant considerations. A factor must not receive reduced weight merely because it is commonplace or capable of arising in other cases. The questions whether very special circumstances exist and whether the harm to the Green Belt is clearly outweighed should not be treated as rigidly separate. The relevant considerations must be assessed individually and cumulatively, and then weighed against the harm caused by inappropriateness and any other harm.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against an Inspector’s decision dated 28 March 2007. The Inspector had dismissed an appeal against South Cambridgeshire District Council’s refusal of planning permission for an extension to a food-milling factory in the Green Belt.

The claimant alleged errors of law in the Inspector’s interpretation and application of paragraphs 3.1 and 3.2 of PPG2, particularly in assessing the weight of business need, environmental considerations and the use of previously developed land.

1. The appeal was allowed. The Inspector’s decision letter was quashed and the matter was to be remitted to another Inspector.
2. Under paragraphs 3.1 and 3.2 of PPG2, inappropriate development is harmful to the Green Belt. Permission should not be granted unless very special circumstances exist, but the existence of very special circumstances and the requirement that the relevant considerations clearly outweigh the harm are linked questions.
3. The proper exercise requires a qualitative planning judgment about the weight of each relevant factor. The expression very special does not impose a test based on rarity, nor does it mean the converse of commonplace. The factors may be considered individually and cumulatively, but they must be weighed against the harm caused by inappropriateness and any other harm.
4. The Inspector had been led into error by R (Chelmsford Borough Council) v First Secretary of State and Draper [2003] EWHC Admin 2978. He wrongly reduced the weight of the claimant’s need for storage because such a need was common or not unusual. He also treated similar environmental and brownfield considerations as lacking weight for the same reason.
5. The errors could not be disentangled from the Inspector’s assessment of the weight of the other considerations. The court could not substitute its own planning judgment: the qualitative assessment was for the Inspector.

1. High Court (Administrative Court): allowed the section 288 appeal against the Inspector’s decision dated 28 March 2007, quashed the decision and directed remission to another Inspector.