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

A challenge under section 288 of the Town & Country Planning Act 1990 is not a further appeal on the planning merits. The court asks whether the inspector acted lawfully on the material before him and whether the reasons, read as a whole, enabled an informed reader to understand the decision.

Under paragraph 89 of the National Planning Policy Framework, the exception for agricultural or forestry buildings is unqualified. The exception for appropriate outdoor sport or recreation facilities is conditional on preserving the openness of the Green Belt. Openness is distinct from visibility, and an inspector’s assessment of openness is ordinarily a matter of planning judgment.

The claimant challenged, under section 288 of the Town & Country Planning Act 1990, a 1990 tree preservation order and a planning inspector’s decision dated 23 July 2014 dismissing his appeal against refusal of permission.

The proposed building comprised stables, hay storage and an indoor exercise or training area for racehorses on Green Belt land. The claimant argued that the proposal was wholly agricultural, or alternatively fell within the exception for outdoor sport, and challenged the inspector’s treatment of the application and his assessment of Green Belt openness.

The court also considered allegations of procedural defect and apparent bias.

1. Disposition. The challenge to the 1990 tree preservation order was dismissed because the statutory six-week period for challenging it had expired more than two decades earlier. Any question whether the order should be varied or revoked had to be pursued through the council’s separate process.
2. Scope of section 288. An application under section 288 of the Town & Country Planning Act 1990 is not a further appeal. The court considers whether the inspector was entitled to reach the decision on the material before him. The decision letter must be read as a whole, and the reasons are sufficient if they enable a properly informed reader to understand why the decision was made.
3. Application under consideration. The inspector was required to determine the application actually made, not a different proposal advanced later. The application documents clearly identified three purposes: stabling racehorses, storing hay and training or exercising horses indoors. The council’s inaccurate heading did not cause legal prejudice because the substance of the application had been understood.
4. Green Belt exceptions. Paragraph 89 of the National Planning Policy Framework treats new buildings in the Green Belt as inappropriate, subject to exceptions. The agricultural and forestry exception is absolute. The exception for appropriate outdoor sport or recreation facilities is qualified by requirements that the development preserve openness and not conflict with the purposes of including land within the Green Belt.
5. The inspector was entitled to conclude that stabling and indoor training were not agricultural uses for the purposes of the agricultural exception. Although he did not decide whether indoor horse training could constitute outdoor sport, that omission was immaterial because the building would materially harm Green Belt openness and therefore could not benefit from the qualified exception.
6. Planning judgment and outcome. Openness is distinct from visibility and visual amenity. The inspector was entitled to find that the building would materially diminish openness, notwithstanding its limited visibility and agricultural appearance. That planning judgment was unimpeachable. The inspector also found no very special circumstances sufficient to justify the inappropriate development. The claim was dismissed, with the applicant ordered to pay the first defendant’s costs summarily assessed at £5,148.

The judgment records earlier procedural decisions by Rhodri Price Lewis QC, sitting as a Deputy High Court Judge, and Mr Justice Ouseley. Those decisions fixed the procedural timetable and affirmed that the challenge to the long-standing tree preservation order could not proceed.