West Lancashire BC v Secretary of State for Communities and Local Government

Under PPG2, a material change of use in the Green Belt is inappropriate development if it fails to maintain openness. A decision-maker cannot conclude that built development affects openness but that the effect is too small to matter. The existence of even one shipping container may prevent the use from maintaining openness. Inappropriate development is harmful and requires consideration of whether very special circumstances clearly outweigh the harm and any other harm. In assessing noise, a decision-maker may consider the actual noise environment, including longstanding unlawful uses, residents’ familiarity with it, complaints, and competing recreational interests, provided those matters are used as material considerations in a fair and proportionate balance.

The Council issued an enforcement notice under the Town and Country Planning Act 1990 concerning recreational motor vehicle and motor racing uses at land within the Green Belt. The Inspector allowed the appeal, quashed the enforcement notice and granted planning permission subject to conditions controlling, among other matters, storage containers, landscaping and noise.

The Council challenged the decision under sections 288 and 289 of the Town and Country Planning Act 1990. The remaining issues were whether the Inspector had misapplied Green Belt policy and whether his treatment of noise unlawfully relied on existing unlawful uses.

1. Green Belt. The Inspector found that the storage containers were akin to buildings and affected openness. The question was therefore whether the material change of use maintained openness. Under paragraph 3.12 of PPG2, it did not. The policy gave no latitude to treat an adverse effect on openness as immaterial merely because it could be minimised by conditions. Even one container would constitute built development and have an adverse effect on openness.
2. That conclusion meant that the use was inappropriate development. Under paragraph 3.2 of PPG2, inappropriate development was harmful to the Green Belt. The Inspector was required to consider whether very special circumstances clearly outweighed the harm by reason of inappropriateness and any other harm. He had not followed that analysis. His decision was therefore flawed in law.
3. Noise. The Inspector was entitled to note the actual level of noise at the site in preceding years, notwithstanding that some activities were unlawful. He was not treating those activities as a lawful fallback or comparing the proposed use with an assumed lawful baseline. The observations concerned the residents’ experience of the site and the fact that some had complained while others had not.
4. The Inspector was entitled to balance the protection of residential amenity against the legitimate enjoyment of the recreational facility and to impose conditions intended to minimise noise. His treatment of noise involved only material considerations and was lawful.
5. The claim succeeded on the Green Belt ground. The Inspector’s decision was quashed and the second defendant’s appeal under section 174 of the Town and Country Planning Act 1990 was remitted to the Secretary of State for redetermination. The parties were to resolve costs on the agreed basis for the remaining grounds.

1. Secretary of State’s decision: By decision letter dated 3 June 2009, the Inspector upheld the appeal against the enforcement notice, quashed the notice and granted planning permission.
2. High Court (Administrative Court): The Inspector’s decision was quashed on the Green Belt ground. The appeal under section 174 of the Town and Country Planning Act 1990 was remitted for redetermination.