Dartford Borough Council, R (On the Application Of) v Secretary of State for Communities And Local Government

The definition of previously-developed land in the National Planning Policy Framework excludes private residential gardens only where they are in built-up areas. The court must apply the words of the policy objectively and cannot correct an alleged policy omission. In Green Belt cases, compliance with a development-plan policy may form part of a composite set of very special circumstances, even where that compliance would not suffice by itself. The decisive question is whether the other considerations clearly outweigh the harm arising from inappropriate development and any additional harm. Adequate reasons enable the reader to understand the decision and its treatment of important controversial issues.

Dartford Borough Council challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing a retrospective appeal for a private gypsy and traveller site within the curtilage of a farmhouse in the Green Belt.

The claim alleged that the inspector had misconstrued the definition of previously-developed land, failed to give adequate reasons, and unlawfully or irrationally found very special circumstances justifying inappropriate Green Belt development. The central issues were the meaning of the residential-garden exclusion, the adequacy of the inspector’s reasoning, and whether the relevant planning-policy compliance could contribute to the required balance.

1. The claim was dismissed on all grounds. The words “land in built-up areas such as private residential gardens” in the definition of previously-developed land could not be read as excluding private residential gardens outside built-up areas. To adopt that construction would contradict the clear policy wording. Any policy change or correction was a matter for the Minister, not the court.
2. The decisions in Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386 and Timmins v Gedling Borough Council [2015] EWCA Civ 10 did not justify disregarding express words in the policy. The earlier decision in Dartford Borough Council v Secretary of State for Communities and Local Government [2012] EWHC 634 (Admin) concerned a garden in a built-up area and did not decide the issue arising here.
3. The inspector’s reasons concerning the curtilage of developed land were intelligible and adequate. The conditions imposed did not show that he had assumed the whole curtilage should be developed. The late argument concerning permitted development rights added nothing of substance.
4. Compliance with Policy CS20 could contribute to a composite bundle of very special circumstances. It was not said to be sufficient by itself. The inspector was entitled to consider the outstanding need for sites, the absence of realistic alternatives, the limited reduction in openness, the low adverse consequences of a single pitch within a domestic curtilage, the unusual compliance with CS20, and the fact that the combination was unlikely to be repeated elsewhere.
5. The inspector had adequately explained the relevance of CS20 and the other considerations. The conclusion that they clearly outweighed the totality of harm was within the range of reasonable planning judgment and was not irrational.

Costs were summarily assessed at £6,812. Permission to appeal was refused.