Samuel Smith Old Brewery (Tadcaster) v Selby District Council & Anor [2003] EWHC 856 (Admin)

Case No CO/4942/2002Neutral Citation No. 2003 EWHC 856 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Date Wednesday 16 th April 2003
Central Criminal Court
Old Bailey,
London
Before
ROGER HENDERSON QC
Between
SAMUEL SMITH OLD BREWERY (TADCASTER)ClaimantSELBY DISTRICT COUNCILDefendantMR I H and MRS K S HUTCHINSONInterested Party
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Peter Village QC and James Strachan (instructed by Pinsent Curtis Biddle) for ClaimantPhilip Petchey (instructed by Selby District Council) for Defendant for The Interested Party did not appear and was not represented.
Judgment
[1]The Claimant seeks to quash a planning permission dated 17th September 2002 for the retention of a building for use in connection with an equestrian centre on land near Tadcaster granted by the Defendant, Selby District Council. The land lies within the Green Belt as designated in the North Yorkshire County Structure Plan.[2]The owners of the relevant development are Mr and Mrs Hutchinson who were served as interested parties but have taken no part in these proceedings.[3]The site has a sad forensic planning history. On 17th July 2000, Harrison J. quashed a purported permission in respect of the very same development dated 24th May 1999. His judgment is directly relevant to the issues in relation to the present proceedings.[4]On 19th July 2002 Stanley Burnton J. quashed (by consent) a resolution dated 19th December 2001 to grant permission in respect of the same development.[5]In essence the Claimant’s present case is that the Defendant has yet again misdirected itself and come to an unlawful decision to grant planning permission. I agree with those submissions for the following reasons.

Background

[6]Planning Policy Guidance (PPG2) in relation to Green Belts was issued on 25th March 1988. The relevant Green Belt of approximately 50,000 acres was shown on the appended plan. The stated purposes of Green Belts were:
“- to check the unrestricted sprawl of large built-up areas; - to safeguard the surrounding countryside from further encroachment; - to prevent neighbouring towns from merging into one another; - to preserve the special character of historic towns; and - to assist in urban regeneration.”
[7]The thrust of the January 1995 PPG2 revision remains substantially the same but there are material differences. In paragraph 13 of the 1988 guidance, one finds the following in relation to control over development: 8. The underlined words are not to be found in the 1995 Guidance.[8]The relevant development can reasonably be described as a “use appropriate to a rural area” and therefore had the application been made and considered before January 1995, there would have been a reasonable prospect that it would have been considered to be congruent with the guidance at that time. In fact two applications were made by the Hutchinsons in November 1991 and February 1992 respectively which were acceptable to the Defendants in terms of Green Belt considerations but they both failed upon highway grounds.[9]In paragraph 68 of the report to the Defendant’s planning committee of 3rd July 2002 at which the relevant application for planning permission was considered, one finds these words under the heading “personal circumstances of the Applicants”: 11. It is said on behalf of the Claimant that this vitiated the decision-making process because it was misleading. I disagree. It is possible that it gave a misleading impression in that paragraph and in paragraph 79 but it is no less possible that the tense of the verb gave a true impression and that members of the committee may have taken the statement at face value. I accept that they were certainly not helped by any clear advice to the effect that the 1995 guidance materially altered the situation and that the Applicants had been advised by experts about the change of policy. The report is open to criticism for these deficiencies but if they stood alone they would not justify review of the planning permission by this Court.[10]I turn to the planning permission purportedly resolved to be granted by the Defendant on 17th February 1999 and, the Secretary of State not having intervened, purportedly granted on 24th May 1999. The permission was impugned on many grounds. These included misdirection that equestrian use was a use related to agricultural and forestry uses for the purposes of PPG2 and a further ground that the Defendant “failed to have regard to the fact that planning policy in respect of Green Belt development had changed since these previous applications had been dealt with. These changes rendered it inappropriate to attach any or any significant weight to the fact that the previous refusals had been on highway grounds only, rather than Green Belt grounds….”[11]In essence, Harrison J. accepted the former submission and found that there was an error of law which vitiated the decision. On the other hand, he rejected the second submission in these terms:
“31. I turn then to consider Mr Village’s second submission which was that no reasonable planning authority could have regarded the lack of objection on highways grounds as capable of amounting to very special circumstances. I would accept that the mere lack of a highways objection would not be capable in itself of constituting a very special circumstance, but I am not persuaded that that is how the Planning Committee would have understood the point that was being made. 32. The Minutes record that the very special circumstance being referred to was that the two previous refusals on the site were on highway grounds only and that that issue had now been overcome. The use of the word “only” is, in my view, important. The fact that the two previous refusals were on highway grounds only means that there was no refusal on Green Belt grounds. The fact that there was no Green Belt objection on the two previous occasions would, in my view, be capable of constituting a very special circumstance and, as I understand it, that was accepted by Mr Village. ……. 34. …….it does not affect the fact that the committee were entitled to have regard to the fact that the two previous refusals were on highway grounds only, not on Green Belt grounds, when considering whether there were very special circumstances. My conclusion, therefore, is that Mr Village is right in his first submission and wrong in his second submission.”
[12]There is no transcript of the argument before Mr Justice Harrison but Mr Village who again appeared for the Claimant said that the difference between the 1988 and 1995 Guidance was not developed in argument although raised in the grounds. Mr Petchey who appeared for the Defendant council in the present matter but did not appear before Harrison J. responded to the effect that he was unable to assist the Court as to what was and was not the subject of oral submissions but the matter was clearly raised on the pleadings and there was a clear determination by Harrison J. of an issue raised in the Applicant’s case. If the judgment erroneously referred to a concession it could have been but was not corrected at the time. He submitted that Harrison J. was not simply saying that this matter was “capable of being a very special circumstance but was rejecting a submission that it did not constitute such a circumstance”.[13]I have not found this matter easy. I am confident that Harrison J. was not deciding that very special circumstances existed by reason of the absence of a Green Belt objection on the two previous occasions. At most he was saying that such a circumstance was capable of being very special. That being so, nobody reading the Judgment could have proceeded upon the basis that such very special circumstances had been held to exist and therefore planning permission should be granted, other things being equal and other tests being satisfied.[14]It seems to me that the highway hurdle having been overcome, a new Green Belt hurdle arose in 1995 by virtue of the change of policy and that it was to the 1995 policy that regard had to be paid in and after 1995. Had construction or development been begun based upon the pre-existing policy and through no fault of the Hutchinsons, that might well have constituted a very special circumstance. That is an example and is not intended to be exhaustive. It seems to me that it might be in relation to such a hypothetical situation that Mr Village might have accepted that his submission must potentially be modified by exceptional circumstances and I rather doubt whether Harrison J’s attention can have been drawn to the material change in the Guidance.[15]In any event I conclude that he was deciding no more and no less than that an absence of Green Belt objection on previous occasions might be capable of constituting a very special circumstance. The Hutchinsons could have had no legitimate expectation that planning policy would not change or that they had now established very special circumstances.[16]That decision having been quashed, a further defective report was put before the Defendant which led to a resolution of the Defendant on 19th December 2001 to grant planning permission for retention of the building which had been erected by the Hutchinsons for equestrian purposes in 1999 and January 2000 at a time when they knew that the permission decision which was subsequently quashed by Harrison J. was under challenge inter alia on the ground which led to it being quashed. This further report omitted to place any reliance upon the 1991/1992 planning history as a purported very special circumstance.[17]By consent the December 2001 permission was quashed by Stanley Burnton J. on 19th July 2002 and the order recited that the Defendant “accepts that the decision should be quashed….in that the Defendant erred having been misdirected by the planning officer that the absence of harm was capable of counting as “very special circumstances” within the meaning of PPG2”.[18]I turn to the relevant report and decision in the instant challenge. It runs to some 83 paragraphs in over 20 pages of closely typed script. At paragraphs 14-17 the personal circumstances of the Hutchinsons are described. The report reverts to those circumstances in paragraph 68, all of which I have set out barring the first sentence in paragraph 9 above.[19]I begin with the Hutchinsons personal circumstances because at paragraph 79 the report states:
“I do however consider that the personal circumstances of the Applicants amount to very special circumstances. I consider that it would be very harsh in the circumstances that arise to refuse the Applicant planning permission for development which would allow them to expand their business. Members will recollect that Mr Justice Harrison accepted that the fact that there was no Green Belt objection to the two previous applications in 1991 and 1992 was capable of amounting to very special circumstances and this fact lies, it seems to me, at the heart of the very special circumstances which I have identified.”
[20]There was nothing in the report which suggested that the Hutchinsons had acted in reliance upon the absence of Green Belt objection to the applications in 1991 and 1992. Nor was there any consideration in the report of the material change in the Guidance. When considering the particular circumstances of the Hutchinsons, there is no mention of the applications made a decade before although the matter was said by the planning officer to be “at the heart of the very special circumstances” which he had identified.[21]What were those circumstances? The Hutchinsons had wide experience of working with horses. Before construction of the new building, the capacity of the business was to handle about 8-9 horses:
“The business comprised of general livery, the breaking and schooling of horses, the sale preparation of horses, and holiday clients. The equestrian centre, which has a capacity of 7 horses, has enabled Mr and Mrs Hutchinson to develop that part of their business devoted to the breaking and schooling of horses. They buy foals which they subsequently sell as yearlings. The foals are “quality bloodstock” and the centre has been an immediate success. 16. Mr and Mrs Hutchinson have supplied the District Council with figures of their net profit for the last 5 complete accounting periods. ….”
The figures revealed net profit of between £12,500 for the year ending May 1997 (i.e. before the centre was constructed) and about £27,000 for the year ending May 2001 if foot and mouth influences were discounted.[22]There was no evidence of hardship. Nor was there any evidence of search for alternative premises and of the absence of such premises. Paragraph 68 added this: 29. Limited additional material relating to the Applicants is to be found in a statement of Malcolm Stuart of Weatherall Green & Smith of 18th January 2000 which places reliance upon the individual circumstances and use of the property by the Applicants, and a report of December 1998 by Weatherall Green & Smith which sought to establish need and exceptional circumstances sufficient to justify the development. At the latter time, the highway objection was about the disappear because of substantial highway works in the vicinity.[23]In paragraph 5.2 of their report Weatherall Green & Smith describe the Hutchinsons situation as unenviable because with the alleviation of the highway problems they now found that their proposed plans required “additional consideration in view of the policy changes in the relevant PPG’s.” They described this change as “extenuating circumstances in this particular case if our clients are to continue in a rurally based equestrian activities (sic) in order for them to provide an income which will sustain a reasonable standard of living and the needs of their growing family.” The report emphasised:
“two very important points: 1. Our clients are effectively a husband and wife team, work 7 days a week, 51 weeks a year and on average put in between them well in excess of 80 hours per week for a level of income which is barely above the national average wage for one person. The expansion of their business is now a necessity which cannot be achieved without the provision of the building in question. 2. It is only through their love of horses that their enthusiasm has been sustained for the period of time to date and this cannot continue indefinitely with the current income being produced. We would further add that as part of their current income, an integral part of the breaking in of young horses which is in itself a very dangerous part of their occupation and if for any reason either of our clients were to sustain serious injury through this activity it could mean a lay off of anything between 6 and 12 weeks which would effectively cripple their business (sic). As part of their planned expansion scheme they wish to promote their equestrian business on a much broader front which will hopefully take away to a degree, although not wholly, a very dangerous part of their ongoing business……”
On the assumption that planning permission is granted for my clients equestrian centre this will incorporate 7 new stables of which four will be solely for our clients own use. The development of the equestrian centre is in the main for the schooling and breaking of horses whereby our clients will be involved in buying foals in order to re-sell subsequently as yearlings.” In their conclusion they said:
“The proposal is an exceptional circumstance for development in the Green Belt and there is a definite need for the new building in order to secure the future prosperity of the Applicant’s business…..”

Decision

[24]It is accepted by the Claimant that personal circumstances can constitute “very special circumstances” within the meaning of the planning policy guidance. However, it was not accepted that very special circumstances which are personal can arise unless the Applicants for planning permission in any particular case rely upon them. Therefore, insofar as the report sought to invoke the earlier refusals of planning permission purely on highway grounds as a very special circumstances, this was an erroneous approach. I agree.[25]It might have been different if there had been no change of policy and there had been reliance by the Hutchinsons upon the pure highway basis of earlier refusals, but there was no such reliance on the evidence and their experts had expressly recognised and advised them of the supervening problem of the change of guidance. The very special circumstances had to be those personal to and relied upon by the Hutchinsons. At the request of the defendant and by way if clarification I add this: That the potentially very special circumstances identified by Harrison J cannot in my judgment have survived that 1995 change of policy and in the absence of reliance before that change they are insufficient now to be more than a component of this sad planning history.[26]It is the submission of the Claimant that “an assessment of their present circumstances could not begin to found a case” of very special circumstances. The disclosed accounts indicate a healthy net profit of in excess of £20,000 in the year ending May 1998 and of in excess of £18,000 in the year ending May 1999 prior to the construction of the development. There was no suggestion in the Weatherall Green & Smith report that such levels of profitability were unsustainable. It was submitted that “the expansion of a business cannot in itself amount to a very special circumstance. It might be the case that evidence of an unrequited need for a particular product/business, coupled with evidence of a lack of available locations elsewhere may amount to a very special circumstance. In this case, however, there was no evidence of a particular unrequited need for the business. Still less was there any evidence that a search of available locations outside of the Green Belt had been undertaken.”[27]In my judgment, there is very considerable force in these submissions which proceed to a submission that the council’s decision was irrational in the sense that no reasonable council could have reached the conclusion that it did. If a desire to expand a modestly profitable business were able to constitute a very special circumstance sufficient to permit approval of development in the Green Belt, the policy could and would be grossly undermined. Being very conscious that it is not for the Court to substitute its judgment for that of the planning committee except where there must have been a defective process of reasoning, I conclude that the committee were misdirected by the officer’s report that the circumstances which obtained in this case were capable of constituting very special circumstances sufficient to justify the relevant development.[28]No doubt the officer had considerable sympathy for the Hutchinsons but he could not rationally conclude that very special circumstances existed because of their personal circumstances, nor because of the 1991/1992 planning history. The committee’s decision was vitiated because nobody could have concluded that the circumstances were very special by a proper process of reasoning. Such a process would have carefully considered whether a desire to expand a moderately profitable equestrian business could without evidence of personal hardship, evidence of unrequited need, or other special circumstances have sufficed. The answer would have had to have been ‘no’. For the officer to “consider that it would be very harsh in the circumstances that arise to refuse the Applicant planning permission for development which would allow them to expand their business”, there would have had to have been persuasive evidence of a type which was wholly lacking and the planning history of 1991/1992 did not as a matter of fact lie “at the heart” of the matter.[29]I turn to the second ground upon which the permission is challenged, namely that the committee were led into error in the decision making process required under Planning Policy Guidance 2 as respects the weighing exercise and in particular that harm to the openness of the Green Belt was restricted to visual harm. I consider that this ground of challenge is well founded.[30]Under Part 3 of PPG2 of 1995, namely the part concerned with “control over development” there is a presumption against inappropriate development within the Green Belt. “Such a development should not be approved, except in very special circumstances.” (paragraph3.1 ). “Inappropriate development is, by definition, harmful to the Green Belt. It is for the Applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” (paragraph3.2 ). “The construction of new buildings inside a Green Belt is inappropriate unless it is for” one of five specified purposes, none of which apply in the present case.[31]Thus, it was for the Hutchinsons to show why in relation to this inappropriate development which by definition was harmful to the Green Belt, there were very special circumstances which clearly outweighed both the harm flowing from inappropriateness and any other harm.[32]Reading the report as a whole, harm to openness was considered only in the context of visual impacts which were considered by the officer to be very limited. The relevant part of the report is to be found in paragraphs 64 and 65. That the visibility of the development was the exclusive focus of the damage to openness is emphasised by paragraph 81. Impairment of openness of countryside is not limited to visual impacts. The impact on the functions of this part of the Green Belt went unconsidered or unaddressed. This is important because the committee was directed in paragraph 77 in these terms:
“Looking at the matter in practical terms, in relation to this particular application I think that the relevance of the fact that the development has a limited impact upon the openness of the Green Belt is that the very special circumstances which the Applicant needs to show are less weighty than they would need to be if the impact were greater….”
[33]I am fortified in my judgment by that of Sullivan J. in Doncaster Metropolitan Borough Council v. Secretary of State for the Environment Transport and the Regions (2002) JPL 1509. At paragraph 74 he said: 43. The decision letter in that case did not state in terms that there were very special circumstances which justified the grant of permission for inappropriate development in a Green Belt. Sullivan J. said, “…..it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt. That policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of many permissions would destroy the very qualities which underlie Green Belt designation. Hence the importance of recognising at all times that inappropriate development is by definition harmful and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt.”[34]The report did not move on from visual impact to other impacts on the function of the Green Belt or other additional harm of non-visual character. Had this been the only criticism, looking at the report as a whole, it would not have merited judicial intervention. However, looking at the report in the round and its probable impact upon the committee, I am satisfied that it was materially defective. The officer appears to have striven to try to find reasons why planning permission should be granted and the overall impression of the report was to confect very special circumstances where the facts had to be stretched to achieve this supposed state of affairs and to underplay the obstacles in the way of the grant of permission, applying the approach described by Sullivan J. with due rigour and the relevant circumstances.[35]The decision to grant planning permission by the Defendant when the Secretary of State had chosen not to call this local matter in, is fit to be quashed because the vital report was materially flawed for the reasons and in the respects which I have identified. - - - - - - - - - - - - - THE DEPUTY JUDGE: I am going to hand down the judgment. There are lots of copies here. You have already seen a draft, I know. Mr Village, you have kindly drawn my attention to one or two matters. I think I have accepted everything you have said re minor correction. I was not responsible for the heading, that was done by the clerk, they got a number of other things wrong, and they have been corrected. Mr Petchey submitted a note asking for clarification, did you see that Mr Village? MR VILLAGE: My Lord I did, and my only comment about it is that I think my Lord's judgment is pellucid and no further clarification is necessary. THE DEPUTY JUDGE: You are very kind. I thought that if they wanted further clarification I was prepared to give it, and therefore did not think it was quite as pellucid as you kindly say. What I am minded to do is to add, minimally, to the judgment at paragraph 14, to insert a sentence in the fifth line of that paragraph, after the words, "very special circumstance". The sentence I would insert is, "That is an example and is not intended to be exhaustive." At the end of paragraph 25 to add a few lines as follows:
"At the request of the Defendant and by way of clarification I add this: That the potentially very special circumstances identified by Harrison J cannot in my judgment have survived the 1995 change of policy and the absence of reliance before that change, sufficient now to be more than a component of this sad planning history."
So I have acceded to Mr Petchey's request for something additional, and I hope it is of assistance to him, even if it is not of assistance to him in another way. MR JONES: My Lord, I am grateful. Could I also convey Mr Petchey's apologies. I am grateful to your Lordship, on behalf of Mr Petchey, for sitting early in delivering judgment. As matters turned out in the matter that Mr Petchey is engaged, the timetable meant he is currently in the middle of his oral submissions in front of Collins J, so could I convey his apologies. THE DEPUTY JUDGE: I am sorry not to see him, but that is very kind of him. Now where have we got to in relation to costs? MR JONES: My Lord, if my learned friend does not mind me dealing with it, costs have been agreed, I understand, and I have a letter from my instructing solicitors which accords with my discussions with my learned friend in the sum of £26,500 inclusive of VAT. THE DEPUTY JUDGE: That is very interesting, because that is almost exactly the figure to which I had come. MR JONES: That is gratifying, my Lord. THE DEPUTY JUDGE: Without knowing how you got to your figure, I had come to a figure which did not include VAT, of £25,000. It has to be almost exactly the same, I think. MR JONES: My Lord, I think that is right. THE DEPUTY JUDGE: Very well, in that case I, by consent, award costs in the sum agreed in favour of the claimant and against the defendant, and make no order in relation to the interested parties. MR VILLAGE: My Lord, I therefore ask, formally, for an order quashing the planning permission and, obviously, my Lord has just dealt with costs. THE DEPUTY JUDGE: Yes, and indeed you have your order. MR JONES: Yes, that must be right. My Lord, could I just raise one matter, just in respect of the clarification on the transcript. There is a stenographer recording it, otherwise I would say that I could type a note and seek to agree it with my learned friend, but if it is -- now that I have stood up I can see that there is a stenographer so I need not trouble your Lordship. THE DEPUTY JUDGE: Very well.