Taylor Wimpey (South West Thames) Ltd v Secretary of State for Communities and Local Government & Anor

When assessing an application that seeks to amend a partially implemented development in the green belt, the decision-maker must identify the development for which permission is sought in substance. It is not necessarily confined to the physical alterations shown within a red-line area. The decision-maker must also take account of the planning history, including an earlier permission for the development being amended where that permission was granted because very special circumstances outweighed green-belt harm. If the amendments improve the approved scheme without increasing relevant harm, that earlier finding is a highly material consideration in the fresh balancing exercise.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of its appeal against refusal of planning permission. The proposal concerned an existing residential development in the green belt that was already under construction. It sought additional flats, roof accommodation, dormer windows and roof lights, together with limited layout changes.

The Inspector treated the appeal as concerning only the extra works and concluded that, although the effect on openness and living conditions was acceptable and additional housing attracted significant weight, the proposal remained inappropriate development whose benefits did not clearly outweigh definitional harm. The central issues were whether the proposal had been characterised correctly and whether the Inspector had failed to consider the earlier permission and its very special circumstances.

1. Claim allowed. The Inspector’s decision was quashed because he failed to take account of a highly material consideration. The matter was not remitted by a formal order in the judgment, but any future consideration of the appeal had to take account of the judgment.
2. The planning legislation did not provide a simple application to amend an existing permission. However, an application could in substance seek permission to complete an approved development in amended form without complying with specified conditions. Section 73A of the Town and Country Planning Act 1990 permitted permission for development already carried out, including development carried out without complying with a planning condition.
3. The application, read with its plans and supporting documents, related to the entire development site and sought variations to the permitted development as a whole. The red line identified the dwellings affected by the variations; it did not confine the proposed development to those extra works.
4. Under PPG2, inappropriate development in the green belt attracts presumed definitional harm and substantial weight must be given to that harm. The decision-maker must identify the development, assess all harm and benefits, consider relevant planning history and grant permission only where very special circumstances clearly outweigh the harm.
5. The approved development was already being constructed and had previously been permitted because its very special circumstances outweighed its green-belt harm. The proposed amendments had been found to improve the scheme, provide additional housing and affordable housing, and cause no additional relevant harm. That earlier finding was therefore highly material. The Inspector’s failure to consider it meant that his conclusion would, or would probably, have been different.

The claim arose from an appeal against Elmbridge Borough Council’s refusal of planning permission on 1 February 2010. A Planning Inspector considered the appeal in June 2010 and dismissed it by decision letter dated 7 July 2010. The High Court (Administrative Court) quashed that decision.