BSP (Knockholt) Ltd, R (on the application of) v Secretary of State for Communities & Local Government & Anor

In Green Belt planning cases, an operation is inappropriate development where it fails to maintain the Green Belt’s openness. A planning inspector may assess openness by considering the materiality of the proposed use and any realistic fallback use. Where inappropriate development is established, the applicant bears the heavy burden of showing very special circumstances. Evidence that an ancillary use is commercially necessary for an existing lawful facility does not, without more, establish very special circumstances. The relevant question may be whether refusal would deprive the local community of the facility altogether, rather than whether the particular operator could continue its present business model.

BSP (Knockholt) Ltd sought planning permission under section 78 of the Town and Country Planning Act 1990 for the continued use of a concreted site adjoining its lawful waste transfer station in the Green Belt. The site was used for skip storage, plant parking, vehicle manoeuvring and maintenance, and ancillary skip hire. An enforcement notice appeal under section 174 of the Town and Country Planning Act 1990 was withdrawn at the inquiry.

The Inspector dismissed the planning appeal, finding that the use did not maintain openness and that very special circumstances had not been shown. The claimant challenged that decision on grounds of misunderstanding, procedural unfairness and irrationality.

1. Appeal dismissed. The Inspector’s decision was not unlawful. The claimant was ordered to pay the Secretary of State’s costs, assessed on an interim basis at £6,141.
2. Under PPG2, the relevant question was whether the operations maintained the openness of the Green Belt. The Inspector was entitled to find that heavy skip lorries, plant parking, manoeuvring, maintenance and the storage of numerous skips did not do so. The conclusion was concise but rational and could not be characterised as one which no reasonable inspector could reach.
3. The Inspector was also entitled to compare the impugned use with the realistic fallback use of the land. Although a return to railway use was unlikely, it would have had less of the incompatibility and incongruity associated with the waste transfer station and ancillary skip operation.
4. Once the use was found to be inappropriate development, the claimant had to establish very special circumstances. The claimant’s evidence showed that it could not operate its existing business in its present form without the ancillary site. It did not establish that refusal would prevent any waste transfer station from operating or leave the Borough’s waste-management needs unmet. The Inspector therefore applied the burden correctly.
5. There was no procedural unfairness. The Inspector did not reject the claimant’s evidence. The statement that the existing operation “may be” necessary was properly understood as assuming the evidence to be true, while concluding that it did not demonstrate the necessary very special circumstances. Nor was the decision Wednesbury unreasonable.

The judgment concerned an appeal against the Secretary of State’s dismissal, through an Inspector, of the claimant’s planning appeal following the London Borough of Bromley’s refusal of permission. The related enforcement notice appeal was withdrawn at the inquiry.