Sharma v Secretary of State for Housing, Communities and Local Government & Ors

In a challenge under section 289 of the Town & Country Planning Act 1990, an inspector’s planning decision must be read fairly and flexibly as a whole. A fallback use is relevant where there is a real, rather than merely theoretical, prospect of its implementation. The extent and likely impact of that use are matters of evidence and planning judgment; the law does not require the fullest possible use to be assumed automatically. Green Belt openness has both spatial and visual dimensions. Where development is inappropriate, very special circumstances require the Green Belt harm, given substantial weight, and any other harm to be clearly outweighed by other considerations.

The applicant operated an airport parking business on previously developed land within the Green Belt. The local planning authority issued an enforcement notice alleging an unauthorised material change of use to airport car parking. On appeal under section 174 of the Town & Country Planning Act 1990, an Inspector dismissed the appeal but varied the notice.

The applicant appealed to the High Court under section 289, arguing that the Inspector had failed to assess the lawful fallback uses certified by lawful development certificates, the spatial and visual effects on Green Belt openness, and the effect of a proposed landscaped buffer zone. The central issue was whether the Inspector’s reasoning was legally adequate and rational.

The appeal was dismissed and the Inspector’s decision stood.

1. Approach to the decision letter. Applying Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government and another [2014] EWHC 754 (Admin), the decision letter had to be read fairly, flexibly and as a whole. The court would not dissect it in an overly legalistic or pernickety manner. The Inspector’s reasons were intelligible and adequate.
2. Fallback position. The lawful uses under the lawful development certificates provided a realistic fallback. The relevant comparison was between the airport parking use and the likely effect of the lawful fallback uses on Green Belt openness. Following Mansell v Tonbridge and Malling BC and others [2017] EWCA Civ 1314, whether there was a real prospect of implementation, and what that implementation would involve, were matters for evidence and planning judgment. “Real” meant more than merely theoretical, but probability was unnecessary. A decision-maker was not required by law to assume that permitted uses would be exercised to their fullest extent.
3. Openness. The Inspector was entitled to find that the dense and persistent parking of vehicles reduced openness as a matter of fact and that it also had a visual effect. The concept of Green Belt openness has spatial and visual aspects, as explained in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466. The Inspector had considered the fallback uses, the relevant viewpoints and the limited evidence about the extent of those uses.
4. Buffer zone and very special circumstances. The Inspector expressly considered the proposed buffer zone and was entitled to conclude that it would not produce a net benefit or remove the overall reduction in openness. Inappropriate Green Belt development was harmful by definition, substantial weight had to be given to that harm, and very special circumstances required the harm to be clearly outweighed by other considerations. On the evidence, no sufficient benefits were established.

1. High Court (Administrative Court): The appeal under section 289 of the Town & Country Planning Act 1990 was dismissed. The Inspector’s decision stood.