River Club, R (on the application of) v Secretary of State for Communities and Local Government & Anor

For the purposes of the very special circumstances test in PPG2, “any other harm” means harm additional to that arising from inappropriate development. It is not confined to harm to the Green Belt or its purposes and objectives. The decision-maker must identify all relevant harm, including transport or sustainability harm, before balancing it against the claimed benefits. An inspector must evaluate claimed circumstances individually and cumulatively where they are advanced as a package, but need not assign quantified weight to each factor. Failure to address the cumulative case is an error of law.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal against refusal of retrospective planning permission for a fitness studio at the River Club. The site was in metropolitan open land. The inspector found inappropriate development, harm from reliance on less sustainable transport, and insufficient very special circumstances.

The claimant challenged the interpretation of “any other harm” in paragraph 3.2 of PPG2, the inspector’s treatment of the claimed circumstances, procedural fairness concerning safety and the travel plan, and the application of UDP Policy RL2.

1. The claim succeeded on Ground 1 in relation to the treatment of very special circumstances. Paragraph 3.2 of PPG2 requires the development to be assessed as a whole. “Any other harm” means harm additional to harm arising from inappropriate development. It may concern Green Belt or metropolitan open land matters, but is not legally restricted to them. The inspector was therefore entitled, and required, to take account of the proposal’s reliance on less sustainable transport before conducting the balancing exercise.

2. The inspector was not required to quantify the weight given to each circumstance. R (Wychavon District Council) v Secretary of State for Communities and Local Government and others [2008] EWCA Civ 692 required careful evaluation, but did not impose a legal straitjacket requiring quantified weight for every factor. Where circumstances are advanced as a package, however, the inspector must consider them both individually and together.

3. The decision letter considered the individual circumstances but did not address whether they cumulatively amounted to very special circumstances. That omission was an error of approach and was sufficient to quash the decision.

4. The fairness challenge failed. In this context safety and sustainability overlapped. The inspector could assess sustainability by reference to the evidence and the site inspection without reverting to the parties, because sustainability had been identified as a main issue. The inspector was also entitled to assess whether the proposal was major for the purposes of UDP Policy RL2. The policy placed the evidential burden on the applicant, and the claimant had not demonstrated that its requirements were met.

5. The inspector’s appeal decision was quashed and remitted to the Secretary of State. The Secretary of State was ordered to pay the claimant’s costs, capped at 40 per cent, subject to detailed assessment if not agreed.