Veolia ES (UK) Ltd v Secretary of State for Communities and Local Government & Ors

In deciding whether very special circumstances clearly outweigh Green Belt and other planning harm, a decision-maker may consider the fact that a site has been allocated for the relevant development, the statutory process supporting that allocation, and its stated consequences. Relevant benefits need not mitigate Green Belt harm. A recently adopted or imminently adopted plan may therefore materially affect the balance. The decision-maker must evaluate those matters, individually and collectively, rather than treating the allocation merely as a reason to apply the very special circumstances test. Failure to engage with material consequences of an allocation is a material error of law.

Veolia challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s refusal of planning permission for a recycling and energy recovery facility in the Green Belt at New Barnfield, Hertfordshire.

The application had been called in after a planning inquiry. The Inspector found a strong waste-management need, no obvious significantly better alternative, and substantial Green Belt and other harm. The Secretary of State adopted the refusal. By the time of his decision, the Hertfordshire Waste Site Allocations Local Plan had undergone independent examination and was shortly to be adopted, including modifications allocating New Barnfield and recording consequences relevant to Green Belt policy. The central issue was whether those matters had been taken into account in the very special circumstances balance.

1. Outcome. The claim succeeded on ground 1 only. The Secretary of State’s decision dated 7 July 2014 was quashed.
2. Ground 3, concerning prematurity, disclosed an error in the reasoning. However, prematurity was not included in the freestanding very special circumstances balance, and the refusal would inevitably have been the same without that reasoning: Simplex G.E. (Holdings) Limited v Secretary of State for the Environment (1987) 57 P&CR 306 and R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315.
3. Ground 4 failed. Once redevelopment is found to be inappropriate because of its effect on Green Belt openness, the extent of that harm may be assessed in the very special circumstances balance. That is not impermissible double-counting. Non-compliance with Policy RA6 was not, however, treated as an additional harm in the final balance.
4. Ground 5 failed. An Inspector may make a reasonable judgment that need could be met in alternative ways without specific evidence identifying every alternative: Trusthouse Forte Hotels v Secretary of State for the Environment (1987) 53 P&CR 293.
5. On ground 1, the fact of allocation included the statutory processes leading to adoption and the relevant consequences stated in the plan. The allocation of New Barnfield, the exceptional circumstances supporting it, the prospective removal of the site from the Green Belt, and the policy statement that allocation was a relevant very special circumstance all required evaluation. The Secretary of State treated the allocation too narrowly and failed to grapple with those matters.
6. Very special circumstances are not confined to factors mitigating Green Belt harm. They may include economic, public-interest or personal benefits which do not reduce the harm, provided that the circumstances taken overall clearly outweigh Green Belt and other planning harm: Brentwood Borough Council v Secretary of State (1996) 72 P&CR 61 and Wychavon District Council v Secretary of State [2009] P.T.S.R. 19.
7. The plan-led system requires proper regard to an up-to-date or imminently adopted development plan and its examination process. The Secretary of State’s failure to evaluate the relevant allocation policy and consequences meant that the court could not say the decision would necessarily have been the same.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s refusal of planning permission was quashed.