In Sefton Metropolitan Borough Council v Secretary of State for Housing, Communities, and Local Government [2021] EWHC 1082 the High Court rejected an argument that the National Planning Policy Framework requires a two-stage balancing exercise when it comes to green belt development.
The interested party undertook works to a site, which was situated in the green belt, including the installation of hardstanding and siting of caravans, without planning permission. The council served two enforcement notices on the interested party, which were appealed to the Planning Inspectorate who quashed the notices and granted planning permission. The council challenged the inspector’s decision on the basis that he had failed to properly interpret and apply the NPPF policies in respect of the green belt.
In summary, paragraphs 143 and 144 of the NPPF provide that “inappropriate development”, which by definition harms the green belt, should not be approved except in “very special circumstances”. It was common ground that the development constituted “inappropriate development” and the inspector also identified a number of further harms caused to the green belt. However, he concluded that, on balance, factors in favour of the development, constituted “very special circumstances”.
The claimant alleged that the inspector had failed to attach proper weight to the harm to the green belt, contending that substantial weight should have been attached to the harm arising from the inappropriate development with additional weight then being attached to the further, separate harms identified. The court rejected the claimant’s argument finding that the claimant’s approach was an “excessively forensic analysis” and that the NPPF should not be approached as a statute, but as guidance in relation to the exercise of planning judgment. It also confirmed that inspectors’ decisions are to be construed “in a reasonably flexible way” and that matters of planning judgment are matters for the decision maker, following Bloor Homes Ltd v SSCLG [2014] EWHC 754 (Admin).
The court also found that the use of the word “outweighed” in paragraph 144 is simply a metaphor to make it clear to decision makers that inappropriate development cannot be approved without very special circumstances also being present. A strict mathematical balancing exercise is not required as paragraph 144 fails to give guidance on any mathematical calculations for this. Instead, paragraphs 143 and 144 require a single exercise of planning judgment, not a two-stage process, following Doncaster MBC v SSETR [2002] EWHC 808 (Admin).
This is yet another rejection by the court of an attempt to apply an overly strict or mathematical analysis to the judgment applied by a decision maker. While this case reinforces the legally binding nature of the NPPF it also reinforces that demonstrating a breach requires a clearly unreasonable or irrational approach by the decision maker.
Erica Snellgrove is a solicitor in the planning and environment team at Irwin Mitchell
