Forestry Commission & Anor v The Secretary of State for Communities and Local Government & Ors [2015] EWHC 1848 (Admin)

Case No CO/395/2015[2015] EWHC 1848 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 July 2015
Before
THE HONOURABLE MRS JUSTICE LANG DBE
Between
(1) FORESTRY COMMISSIONClaimants(2) FOREST HOLIDAYS LTDClaimant(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) CHESHIRE WEST AND CHESTER COUNCILDefendant(3) MANLEY PARISH COUNCILDefendant(4) COMMUNITIES AGAINST DELAMERE DESTRUCTIONDefendant
Martin Kingston QC and Jenny Wigley (instructed by Pinsent Masons) for ClaimantsDaniel Kolinsky QC (instructed by the Government Legal Department) for First Defendant for The Second, Third and Fourth Defendants did not attend and were not representedHearing Hearing date: 24 June 2015
Judgment
[1]The Claimants apply under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to quash the decision of the First Defendant, dated 18 December 2014, to refuse to grant planning permission to the Claimants for a proposed development on land at Delamere Forest, Station Road, Northwich, Cheshire. The Second Defendant does not oppose the claim.[2]Delamere Forest lies within the North Cheshire Green Belt and an Area of Special County Value (“ASCV”). It comprises some 753 hectares of forest and lakes. It is owned and managed by the Forestry Commission, and is used extensively for public recreation. Forest Holidays is a limited company, partly owned by the Forestry Commission. Forest Holidays manages camping and cabin sites on Forestry Commission land, as a joint venture with the Forestry Commission.[3]On 10 June 2013, the Claimants applied to the Second Defendant for planning permission for development in two separate areas of the forest. At the visitor centre site, at the southern edge of the central main part of the forest, the Claimants applied for permission to re-organise the existing visiting hub facility to provide a replacement visitor centre, and for a change of use of the existing visitor centre to offices, and demolition of the existing offices. At the Kingswood site, at the extreme northwest part of the forest, the Claimants applied for permission to construct a complex of 70 holiday cabins with timber decks, hot tubs and satellite tree houses; a reception area with a shop, café, kitchen, seating area, storage and toilets; a maintenance yard; a refuse area; staff accommodation; car parking and a cycle store.[4]On 29 November 2013, the First Defendant directed, pursuant to section 77 TCPA 1990, that the application should be referred to him for determination because of a concern that the proposed development might conflict with national policy on development in the Green Belt.[5]The First Defendant appointed an Inspector (Ms Wendy Fabian) who conducted site visits and an Inquiry, which sat for 4 days in June 2014. In the Inspector’s Report (“IR”) dated 14 October 2014, she recommended that the application for planning permission be refused.[6]In a decision letter (“DL”), dated 18 December 2014, the First Defendant accepted the Inspector’s recommendations and refused planning permission. In summary, the reasons for refusal were that the proposed cabin development did not accord with the provisions of the development plan. In particular, it was contrary to the Local Plan Policy GS3 (Green Belt); Local Plan Policy RT9 (chalet development) and Local Plan Policy NE11 (designated areas of special county value).

Claimants’ grounds of challenge

[7]The Claimants submitted that, in making his decision, the First Defendant misinterpreted and misapplied Local Plan Policy RT9 on chalet development. Further, although he acknowledged that the proposed development was partially compliant with Policy RT9, he wrongly excluded this factor from consideration when assessing the overall planning balance and reaching his conclusions. His approach was therefore contrary to section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The same errors were made by the Inspector, whose recommendations were accepted by the First Defendant.[8]The Claimants submitted that the First Defendant failed to give reasons for his decision not to accord any weight to the compliance with the criteria in Policy RT9. This ground was added by amendment at the hearing.[9]In response, the First Defendant submitted that the First Defendant and the Inspector correctly interpreted and applied Policy RT9. They were entitled to find that the proposed development was not in accordance with Policy RT9, which provides that chalet development is inappropriate development in the Green Belt and will only be permissible in cases where there are very special circumstances sufficient to outweigh the harm. Such “very special circumstances” did not exist in this case. The proposed development was also contrary to Local Plan and national Green Belt policies.[10]This area of Green Belt land lies “within the open countryside” and therefore paragraph 2 of Policy RT9 also applies to it. However, paragraph 1 adds significant additional restrictions on development in the Green Belt. Thus, fulfilment of the criteria in paragraph 2 is not sufficient to comply with RT9 in respect of a development in the Green Belt.[11]The First Defendant had to decide whether or not the proposed development accorded with the provisions of the development plan when considered as a whole, not by reference to each part of each policy. In conducting this exercise, he clearly had in mind and acknowledged the fact that the proposal met criteria within paragraph 2. As the decision-maker, he was entitled to place such weight on these factors as he saw fit, in the overall planning balance. In considering whether there were “very special circumstances” which outweighed the harm in the Green Belt, it was rational to treat conformity with individual components of the policy expectations as “neutral” rather than “benefits” where they essentially concerned the avoidance/minimisation of harm (as distinct from the conferring of a positive benefit). Once the correct legal approach was adopted, it was clear that the reasons given were adequate.

Legal framework

[12]Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that(a) it is not within the powers of the Act; or(b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.[13]The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.[14]The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
“An application under section 288 is not an opportunity for areview of the planning merits of an Inspector's decision.”
[15]The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”), read together with section 70(2) TCPA 1990. The National Planning Policy Framework (“NPPF”) is a material consideration in planning decision-making (see NPPF paragraphs 11 to 13).[16]In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447, Lord Clyde explained the effect of this provision, beginning at 1458B:
“Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters…… By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is helpful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given. Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell J observed in Loup v Secretary of State for the Environment (1995) 71 P & C.R. 175, 186: “What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations.”
Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues. ….. In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.” “What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations.”[17]This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, per Lord Reed at [17]. Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. He said, at [18], that a development plan is a “carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it”.[18]Lord Reed re-affirmed well-established principles on the requirement for the planning authority to make an exercise of judgment, particularly where planning policies are in conflict, saying at [19]:
“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann).”

The Development Plan

[19]The Inspector and the First Defendant found that the following policies in the development plan, which was the Vale Royal Local Plan First Review Alteration (June 2006), were relevant to the application.[20]LP Policy GS3 provides:
“Within the Green Belt planning permission will not be given except in very special circumstances, for the erection of new buildings unless it is for the following purposes: i) Agriculture and forestry … ii) Essential facilities for outdoor sport and recreation (ref policies RT1, RT12, RT15-16, RE9, MW4) for cemeteries and for other uses of the land which preserve the openness of the green belt (ref policy PS1) and which do not conflict with the purposes of including land within the green belt; iii) Limited extension, alteration or replacement of existing dwellings …. iv) Limited affordable housing for community needs … v) Limited infilling or redevelopment of major existing developed sites …” i) Agriculture and forestry … ii) Essential facilities for outdoor sport and recreation (ref policies RT1, RT12, RT15-16, RE9, MW4) for cemeteries and for other uses of the land which preserve the openness of the green belt (ref policy PS1) and which do not conflict with the purposes of including land within the green belt; iii) Limited extension, alteration or replacement of existing dwellings …. iv) Limited affordable housing for community needs … v) Limited infilling or redevelopment of major existing developed sites …”
[21]The “Reasons and Explanations” for Policy GS3 explain:
“Openness in terms of this policy generally means freedom from built development…”
[22]Delamere is within a designated Area of Special County Value, because of its high landscape quality. LP Policy NE11 provides:
“In designated areas of special county value, because of their landscape quality, their archaeological, historic or nature conservation importance, development which preserves or enhances the character or features for which the ASCV has been designated will be allowed.”
[23]The “Reasons and Explanations” for Policy NE11 state that such areas should be protected from unsuitable development. Pursuant to the policy, a Landscape Character Assessment Supplementary Planning Document was adopted in 2007. It describes the forest as plantation woodland on former heath and peat land, dominated by conifers. It states that the character area has a low visual sensitivity, except open views across the meres.[24]LP Policy NE1 requires the effect of new development on nature conservation to be taken into account. It sets out requirements to ensure that sites that are of importance for nature conservation are identified, managed and protected, with appropriate mitigation measures where necessary.[25]LP Policy NE9 restricts development which necessitates the felling of trees. The “Reasons and Explanations” state that woodlands in particular are an important but declining feature of the countryside which must be conserved and maintained.[26]LP Policy T1 states that the Council will have regard to various transport and highways issues, including the need to mitigate any adverse impacts upon local amenity, environment and highway safety and the need to ensure that the proposal is accessible by a variety of means of transport.[27]LP Policy RT24 applies only to Delamere Forest and states:
“Further low intensity recreational development proposals will be allowed within Delamere Forest, in an area identified on the proposals map, if it is clear that it would not result in unacceptable levels of congestion on roads and would not result in a deterioration of the local environment.”
[28]The “Reasons and Explanations” state that the forest already experiences considerable pressure from existing recreational uses and development of additional uses may result in long-term harm to the environment. Low intensity recreation includes walking, cycling and horse-riding.[29]LP Policy RT9 relates to chalet type development. It states:
“Chalet type development would amount to inappropriate development in the green belt and would only be permissible in cases where other material considerations amounted to very special circumstances sufficient to outweigh the harm to the Green Belt and any other harm arising from the development. Within all parts of the Borough which lie within the open countryside, proposals for chalet type development will be allowed provided that the following criteria are met: (i) the proposed site should have good accessibility via major roads and public transport; (ii) the proposal is centred on a major natural resource; (iii) the proposal does not involve the loss of the best and most versatile agricultural land; (iv) the layout of the site should provide large open areas and landscaping buffers between the chalets and open areas and along the edges of the site; (v) the location of the proposed development should be visually unobstructive; (vi) the proposed development should display a high standard of design; (vii) the proposal should give priority to using land identified for such development in policy RT19, where this is not possible the proposal should make use of under used/vacant land and where possible areas of derelict countryside; (viii) a legal agreement would be entered into to ensure that an ecological site survey is carried out and that the chalets are used as holiday accommodation only, not as permanent residential accommodation; (ix) proposals should incorporate the retention of existing features, such as trees, hedgerows and ponds.”
[30]The “Reasons and Explanations” included:
“To prevent areas of the Borough of high landscape/ecological value from inappropriate development.”
And “The provision of chalet type development would not preserve the openness of the Green Belt and would constitute inappropriate development.”[31]LP Policy BE1 seeks to ensure the quality of the environment and expects a high standard of design for all new development.[32]LP Policy BE21 seeks the on-site generation of renewable energy in appropriate new development

Material considerations

[33]The Inspector and the First Defendant found that the NPPF was an important material consideration, in particular paragraphs 14, 17, 19, 73, 79 to 92. The Government’s Green Belt policy aims to keep Green Belt land permanently open and to enhance beneficial use of the land. Paragraphs 87 to 89 state:
“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. 88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: - buildings for agriculture and forestry; - provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it; - the extension or alteration of a building …. - limited infilling in villages …. - limited infilling or the partial or complete redevelopment of previously developed sites …”
The Inspector’s report and the First Defendant’s decision Visitor Centre.

The Inspector’s report and the First Defendant’s decision

[34]The First Defendant and the Inspector accepted that the visitor centre proposals would not substantially add to the existing facilities, were on a site which was already developed, and so would accord with development plan policies. Cabins development: openness and purposes of the Green Belt.[35]The Inspector found (IR 136 – 139) that the cabin complex would introduce a substantial footprint of built form within the Green Belt, which would significantly harm its openness. It would result in a significant encroachment into the natural and planted areas of woodland forest countryside, thus harming one of the purposes of including land in the Green Belt. The proposal therefore failed to comply with Policies GS3 and RT9.[36]The NPPF advises that substantial weight should be given to any harm to the Green Belt, and so the harm caused by the inappropriate nature of the development attracted substantial weight against the application.[37]The First Defendant agreed with the Inspector’s assessment on issue (ii). Cabins development: character and appearance of the Area of Special County Value and visual amenity of the Green Belt.[38]The Inspector found (at IR 140 – 143) that the proposed cabins development would cause modest harm to the surrounding forest landscape; it would fail to preserve the natural character and appearance of this countryside location within the ASCV and would cause moderate harm to the visual amenity of the Green Belt, contrary to Policies NE11 and SPD5. In terms of design and layout it would accord with the requirements of Policies BE1 and RT9, but this neutral outcome did not weigh in its favour.[39]The First Defendant agreed with the Inspector’s assessment (DL 11). Cabins development: residential and recreational user amenity.[40]The First Defendant accepted the Inspector’s assessment (at IR 144 – 149) that the likely effects arising from noise, disturbance, access and highway safety were not so significant as to warrant refusal. Cabins development: ecology and protected species.[41]The First Defendant agreed with the Inspector that the benefit of enhanced biodiversity added modest weight in favour of the proposal. The proposal would not adversely affect any species and therefore complied with LP Policy NE1. This neutral effect carried no weight in favour of the proposed cabins. Cabins development: alternative sites.[42]The Inspector found (at IR 153 – 154) that the Forestry Commission did not have suitable alternative sites in the region, or within Delamere Forest itself. Comparing the proposed site with others suggested by objectors, the Inspector found that access by road or rail to the proposed site accorded with Policy RT9 criterion (i) (good accessibility via major road and public transport). She said that “the lack of policy objection on this basis is a neutral factor”.[43]The First Defendant agreed with the Inspector’s assessment (DL 14). Cabins development: economic, employment and tourism benefits.[44]The First Defendant agreed with the Inspector that the visitor centre development would be a tangible benefit (DL 15; IR 155, 165).[45]The cabin development would generate revenue, to fund the visitor centre, which attracted some weight in favour of the proposal, tempered by the alternative possibility that the visitor centre could be cross-funded from other existing and proposed cabin development sites outside the Green Belt (DL 15; IR 155-160, 166).[46]The First Defendant saw no reason to disagree with the Claimants’ assessment that overnight accommodation in the forest would provide an enhanced experience in the forest and provide self-catering holiday accommodation. However, there was insufficient evidence to satisfy the First Defendant and the Inspector that self-catering accommodation, including cabin developments in forest locations, could not be found elsewhere in the North West, thus avoiding harm to the Green Belt, and so these considerations carried very limited weight. The evidence was that none of the other Forestry Commission cabin developments had been built in the Green Belt (DL 15; IR 156 – 160, 166).[47]The First Defendant agreed with the Inspector that there would be a tangible increase in overall employment and a significant boost to the local economy as a result of the visitor centre and cabins developments, which weighed strongly in their favour. However, the economic benefit from the cabins could be achieved by development outside the Green Belt, thus reducing the strong weight to be attached to it (DL 16; IR 161 – 163, 168). Whether the harm to the Green Belt by reason of the inappropriateness of the proposed cabins development and any other harm, is clearly outweighed by other considerations.[48]The First Defendant agreed with the Inspector’s assessment at IR 164 -170 (DL 19-20). The benefits of the proposal were not sufficient to outweigh the totality of the harm to the Green Belt and the modest harm to the character and appearance of the ASCV. Proposed development contrary to the development plan[49]The First Defendant agreed with the Inspector (IR 170) that the proposed development would be contrary to Local Plan Policies GS3, NE11 and RT9. Consequently he concluded that the proposal did not, on a balanced assessment, accord with the provisions of the development plan when considered as a whole (DL 21). For these reasons, planning permission was refused.

Policy RT9

[50]The Claimants submitted that the First Defendant and the Inspector misinterpreted Policy RT9. The main operative part of the policy was paragraph 2 and it applied to all chalet type development in the countryside (including within the Green Belt). It was a permissive policy in the sense that it welcomed and encouraged such development, allowing it provided certain criteria were met. Accordingly, whether or not such criteria are met must always be a highly material factor in considering whether there were “very special circumstances” outweighing the harm to the Green Belt and so whether a proposal is accordance with the development plan.[51]I agree with the First Defendant that the Claimants have misinterpreted Policy RT9. The Policy makes special provision for the Green Belt in paragraph 1, stating that chalet development is inappropriate development in the Green Belt, and will only be permissible in cases where there are very special circumstances sufficient to outweigh the harm to the Green Belt and any other harm. Thus, Policy RT9 does not welcome or encourage chalet development in the Green Belt. On the contrary, it provides a high level of protection against such inappropriate development in the Green Belt.[52]Moreover, the restrictions on chalet development in the Green Belt are consistent with Green Belt Local Plan Policy GS3 and national Green Belt policy in the NPPF, paragraphs 87 to 89.[53]Paragraph 2 of Policy RT9 provides that any chalet development in the open countryside will need to satisfy all the stated criteria in order to be supported. Thus, although it is permissive in form, it is highly prescriptive of the type of chalet development which will be allowed. It does not encourage chalet development equally in all parts of the countryside since, at 2(vii), it states that the proposal should give priority to using land identified for such development in policy RT19 or where this is not possible, the proposal should make use of under used/vacant land and areas of derelict countryside. Delamere Forest is not identified for chalet development under RT19 (IR 22).[54]This area of Green Belt land lies “within the open countryside” and therefore paragraph 2 also applies to it. However, I do not consider the Claimants are correct in saying paragraph 2 is the main operative part of the policy, in a Green Belt case. On a proper interpretation, the fulfilment of the criteria in paragraph 2 will not be sufficient to comply with RT9 in respect of a development in the Green Belt. The more stringent requirements of paragraph 1 have to be met for a Green Belt development. In this case, they presented a much higher hurdle to overcome than the criteria in paragraph 2. So it is both understandable and unobjectionable that the main focus of the Inspector’s report and the First Defendant’s decision was paragraph 1, not paragraph 2.[55]I do not consider that there is any proper basis for the Claimants’ assumption that fulfilment of the criteria in paragraph 2 must always be a highly material factor in considering whether there are “very special circumstances” outweighing the harm to the Green Belt and so whether a proposal is accordance with the development plan. The policy does not state this, and it cannot be inferred. In my judgment, the weight (if any) to be attached to the criteria in paragraph 2 is likely to vary from case to case, depending upon the particular facts and planning issues.[56]The Claimants relied upon Veolia ES (UK) Ltd v Secretary of State for Communities and Local Government & Ors [2015] EWHC 91 (Admin), in which the court found the decision-maker had erred in not taking into account the allocation of the appeal site for development as a waste management facility in an emerging plan when deciding whether there were “very special circumstances” justifying the grant of planning permission in the Green Belt. However, it does not follow from that decision, based on very different facts, that the criteria in paragraph 2 of RT9 were highly material factors which the First Defendant had to weigh in the balance in deciding whether there were “very special circumstances” justifying the grant of planning permission in the Green Belt. Each application for planning permission turns on its own particular facts, and development plan policies, which have to be assessed by the decision-maker, on a case by case basis.[57]The Claimants submitted that the First Defendant and the Inspector erred in not treating compliance with criterions (i) transport links, (iv) layout and (vi) design as factors which weighed positively in favour of the development. Instead they treated them as neutral factors.[58]I do not accept this submission. The First Defendant, as the decision-maker, was entitled to place such weight on these factors as he saw fit, in the overall planning balance (see City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447, per Lord Clyde (cited at paragraph 16 above); Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, per Lord Reed (cited at paragraph 18 above); Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann (cited by Lord Reed, in paragraph 18 above). There was no sign of irrationality here. On the contrary, I accept the First Defendant’s submission that it was rational to treat conformity with individual components of the policy expectations as “neutral” rather than “benefits” where they essentially concerned the avoidance/minimisation of harm (as distinct from the conferring of a positive benefit, such as employment or improved facilities). This is plainly what the Inspector and Secretary of State sought to encapsulate through the use of the term “neutral”.[59]Both the Inspector and the Secretary of State plainly had regard to the terms of Policy RT9 and I cannot accept that they overlooked or failed to take into account the matters in paragraph 2, merely because they were not specifically identified by reference to paragraph 2. The obtrusiveness of the location (sub-paragraph v) and the retention of existing features such as trees (sub-paragraph ix) formed part of the consideration of harm to the Green Belt (IR 136 – 138) and the development’s visual impact (IR 140 – 143). The fact that the cabins would be holiday lets (sub-paragraph viii) and set in a forest which was not agricultural land (sub-paragraph iii) but was a major national resource (sub-paragraph ii) formed part of the evidence before the Inspector and the planning assessment by the Inspector and the First Defendant.[60]In my view, the First Defendant was entitled, in the exercise of his planning judgment, not to accord these factors any weight in deciding whether or not there were “very special circumstances”. This was not irrational, nor did he fail to take into account relevant considerations, as these factors had little bearing on the potential harm which had been identified.[61]The Claimants also complained that the First Defendant did not list, as one of the benefits of the cabins development in DL 20, the opportunity to have an enhanced experience of the forest, and extended learning. The First Defendant acknowledged this as a benefit at DL 15.[62]However, the First Defendant also agreed with the Inspector’s view, at IR 159 -160, that the benefits attributed to the cabins could be achieved by similar development in other forests, regionally and nationally, outside the Green Belt, and this meant that only very limited weight for the proposal could be derived from these considerations (DL 15). On my reading, both the Inspector and the First Defendant took this view in relation to all the benefits of a forest cabin development, including the forest experience. The Inspector reiterated this point at IR 166, saying “cabin development could also be met … elsewhere in the forest estate, regionally or nationally”. The First Defendant agreed with this part of the Inspector’s assessment at DL 20. Therefore I do not consider that this point was overlooked by the First Defendant, when conducting the balancing exercise, even though it was not expressly re-stated in DL 20, when he summed up the issues earlier referred to in his decision letter. In my view, this was a drafting oversight, not an error in the reasoning.[63]In reaching these conclusions, I bear in mind that a decision letter must be read(1) fairly and in good faith, and as a whole;(2) in a straightforward down-to-earth manner, without excessive legalism or criticism;(3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment(1993) 66 P & CR 83.[64]Both the Inspector and the First Defendant concluded that the proposed cabins development was contrary to Policy RT9 because it was “inappropriate development in the Green Belt” without “very special circumstances sufficient to outweigh the harm to the Green Belt and any other harm arising from the development”. In my view, this was a planning judgment which the decision-maker was entitled to make. The Claimants have not established any basis upon which this court can overturn it.

Conformity with the development plan

[65]Determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) PCPA, read together with section 70(2) TCPA 1990. The Claimants submitted that the First Defendant, by failing to consider and apply paragraph 2 of Policy RT9, acted in breach of that duty.[66]In the light of my conclusion that the First Defendant interpreted and applied Policy RT9 lawfully, much of the Claimants’ submission on this point falls away. The remaining issue is whether the First Defendant was entitled to conclude, in DL 21, that the proposed development would be contrary to Policies GS3, NE11 and RT9, and that it did not, on a balanced assessment, accord with the provisions of the development plan when considered as a whole. The Claimants submitted that this conclusion was flawed because the First Defendant did not consider and set out the extent to which the proposed development complied with the criteria in paragraph 2 of Policy RT9.[67]In R (Hampton Bishop PC) v Herefordshire Council [2014] EWCA Civ 878, [2015] 1 WLR 2367, Richards LJ said, at [33], that compliance with the statutory duty under section 38(6) PCPA 2004 did, as a general rule, require a decision-maker to decide whether a proposed development was or was not in accordance with the development plan, in order to give it statutory priority and to understand the nature and extent of any departure from it (see Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, per Lord Reed, at [22]).[68]However, as Ouseley J. explained in R (on the application of Cummins) v Camden LBC [2001 EWHC 1116 (Admin), section 38(6) PCPA 2004 does not require a decision-maker to examine every way in which each relevant policy impacts on a proposed development. He said, at [162] and [164]:
“162. There is, in my judgment, a single determination involved in the grant of planning permission …. The “accordance” of this determination has to be “with the plan”; it is not in accordance with each relevant policy of the plan….” “164. It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.”
[69]Cummins was approved by the Court of Appeal in R (on the application of TW Logistics Ltd) v Tendring DC [2013] 2 P. & C.R. 9, where Lewison LJ observed:
“18. …. In a case in which different parts of the Local Plan point in different directions, it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision. This, in my judgment, is established by the decision of Ouseley J. in R (on the application of Cummins) v Camden LBC [2001 EWHC 1116 (Admin) …”
[70]Applying those principles to this case, once the First Defendant had decided that the proposed development was contrary to the Green Belt policies in the Local Plan (RT9 paragraph 1 and GS3), as well as the ASCV policy in NE11, he was entitled to conclude that the proposal was not in conformity with the development plan, whether or not there was compliance with paragraph 2 of Policy RT9, because of the greater weight which he was entitled to accord to the Green Belt policies. Furthermore, section 38(6) PCPA did not impose upon him a legal duty to examine and set out the extent to which the proposal complied with paragraph 2 of Policy RT9 in his decision letter.

Reasons

[71]The Secretary of State is required to give reasons for his decision, pursuant to Rule 18 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.[72]The standard of reasons required was described by Lord Brown in South BucksDistrict Council and another v Porter (No 2) [2004] 1 WL.R. 1953:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[73]In Lark Energy Limited v Secretary of State for Communities and Local Government & Anor [2014] EWHC 2006 (Admin), the Secretary of State failed to meet the standard required when he did not state whether the proposal was or was not in accordance with the relevant development plan policies.[74]In my judgment, the First Defendant’s decision letter adequately explained his reasons on the principal controversial issues and stated that the proposal was not in accordance with the development plan policies. It must have been clear to the Claimants why their application had been refused, namely, that the proposal was contrary to the Green Belt policies in Policy GS3 and Policy RT9 paragraph 1, as well as the ASCV policy in Policy NE11. The extent of compliance with the criteria in paragraph 2 of RT9 was not a principal controversial issue in the appeal, and was not a reason for the decision. In my view, the interests of the Claimants have not been prejudiced.

Conclusion

[75]For the reasons set out above, the Claimants’ application under section 288 TCPA 1990 is dismissed.

Cited in 1 later judgment