Ribble Valley Borough Council, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Anor [2025] EWHC 2363 (Admin)

[2025] EWHC 2363 (Admin)Case No AC-2024-MAN-000331
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Venue Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester M60 9DJDate 25 th September 2025
Before
KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE
Between
R on the application ofClaimantRIBBLE VALLEY BOROUGH COUNCILClaimantSECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENTFirst DefendantMAJID HUSSAINSecond Defendant
Shemuel Sheikh (instructed by Ribble Valley Borough Council) for ClaimantJames Strachan KC and Victoria Hutton (instructed by Richard Max and Co LLP) for Second DefendantHearing Hearing date: 15 May 2025
APPROVED JUDGMENT

Deputy High Court Judge Karen Ridge:

[1]This claim for statutory review is brought by the Claimant under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). The Claimant is the relevant local planning authority which seeks the quashing of a planning permission which was granted by the First Defendant’s Planning Inspector in a decision dated 8 August 2024. The impugned decision allowed an appeal brought by the Second Defendant against the refusal of planning permission on land adjacent to Further Lane, Mellor, Blackburn, Lancashire, BB2 7QB (the Site).[2]The planning application sought consent for the erection of 1 no. private dwelling, with landscaping on land which was designated as Green Belt. The Site is comprised of several horse paddocks with agricultural buildings/stabling in two corners. The dwelling was proposed to be sited on the eastern part of the Site adjacent to Woodfold Park Farm. Planning permission had been refused by notice dated 1 September 2023 for five reasons. Those reasons included: the location of the development outside a defined settlement; Green Belt harm; harm to the setting of a Historic Park; harm to the character and appearance of the local area; and a failure to demonstrate adequate ecological mitigation.[3]The claim was issued on 18 September 2024. Whilst the planning application refusal was based on five reasons and each of those was examined in the Inspector’s Decision Letter (DL), it is the Inspector’s application of national planning policy in relation to the Green Belt issue which gives rise to the grounds of claim. In particular, the question which arose at the hearing was whether the Site constituted inappropriate development within the Green Belt or whether it was not inappropriate development by virtue of falling within one of the Green Belt policy exceptions in the National Planning Policy Framework (NPPF). The relevant policy exception was that contained within NPPF paragraph 154(g).[4]In her acknowledgement of service form, and by way of draft consent order, the First Defendant conceded the claim on 10 October 2024. Permission was first refused on the papers by HHJ Davies, sitting as a High Court Judge, on 29 November 2024. In those unusual circumstances the First Defendant provided a skeleton argument and attended the oral renewal hearing for permission. The First Defendant maintained her position that the claim should be allowed and the decision quashed due to what the First Defendant said was a legal error of her Inspector. Following a renewal hearing on 16 February HHJ Pearce, sitting as a High Court Judge, gave permission for the claim to proceed.[5]At the substantive hearing a preliminary matter arose due to a dispute between the Claimant and Second Defendant as to the basis on which the Claimant put its case at the appeal hearing and whether the Claimant is now seeking to challenge the appeal decision on a basis which runs counter to its position at the hearing. In essence, the dispute between the parties revolves around whether or not the Claimant accepted at the appeal hearing that the Site was previously developed land (PDL). If the Site was PDL, there was a possibility that the proposal fell within the policy exception at paragraph 154(g) of the NPPF relating to new buildings in the Green Belt. The Second Defendant contends that the Council Officers did make that concession at the hearing and therefore this claim should not proceed as a matter of public policy because the Claimant is seeking to pursue an argument not advanced at the hearing. Relevant Legal Principles[6]The legal principles are not contentious. In St Modwen Developments Ltd v Secretary of State [2017] EWCA Civ 1643 Lindblom LJ set out the familiar principles which guide a planning challenge, the most relevant of which are:
“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’: see the judgment of Forbes J in Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P & CR 26 (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration: see the speech of Lord Brown of Eaton under-Heywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 , 1964B–G. … (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration: see the judgment of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] PTSR 983 , paras 17–22. (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question: see the judgment of Hoffmann LJ in South Somerset District Council v Secretary of State for the Environment (Practice Note) [2017] PTSR 1075, 1076–1077; (1992) 66 P & CR 83 (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored: see, for example, the judgment of Lang J in Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) at [58].”
[7]In relation to the issue of the introduction of new material at the claim stage, on behalf of the Claimant, Mr Sheikh has referred me to the judgment in South Oxfordshire DC v Secretary of State for Environment, Transport and the Regions [2000] 2 All E.R. 667 (“South Oxfordshire”) where it was said:
“… there was no general rule that a party to a planning appeal was to be prevented from raising, in a challenge to that decision, an argument that had not been advanced in representations made on the appeal. If the inspector had omitted a material consideration, the decision could be unlawful, notwithstanding that the matter had not been raised in representations.”
[8]The implications of the South Oxfordshire case and the judgment in London Historic Parks and Gardens Trust v Minister of State for Housing [2022] EWHC 829 (Admin) (“London Historic Parks”), were then considered in R (Newsmith Stainless Limited) v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1125 as follows:
“14. It is important that the South Oxfordshire decision is not regarded as a licence to introduce new material, that is to say material that was not before the Inspector, in section 288 applications. That this was not the deputy judge's intention is plain from the manner in which he dealt with the two additional grounds of challenge that were in contention in that case. The background was that the planning authority, whose refusal of planning permission had been overturned on appeal by an Inspector, sought permission to introduce two arguments before the learned deputy judge: firstly, relating to intermittent use; and secondly, relating to the adequacy of a condition. 15. The defendants objected upon the basis that the former argument would require new evidence and the latter could have been dealt with by way of suggested modifications if it had been raised before the Inspector. The judge accepted the validity of those objections and refused to permit the amendments containing the new grounds to be argued. 16. Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment (matters which are for the Inspector not the Court)”
[9]Mr Strachan, for the Second Defendant, has relied upon the judgment of Holgate J. (as he was then) in Mead Realisations Ltd v SSLUHC [2024] EWHC 279 (Admin) when he dealt with the question of new arguments, not previously before an appeal Inspector, put before the Court in support of a claim:
“178. There is also an objection to the raising of a new point of this kind in a statutory review in the High Court. If Redrow had raised at the public inquiry the point now advanced under ground 3, HBC and any other participant would have had an opportunity to adduce evidence if thought appropriate, or, at the very least, to make submissions. Just as important is the point that the matter could have been addressed in a single appeal process. The Inspector would have been able to make any additional findings of fact, to evaluate the weight to be given to the outcome of the sequential test and to strike the overall planning balance, taking into account Redrow's additional point as part of its entire case. 179. The court were to quash an Inspector's decision because of a new point of this kind, it would probably be necessary for the appeal process to be repeated in its entirety or in large part. At the very least, the same Inspector, or a new Inspector, would have to receive fresh submissions and prepare a new decision letter and evaluate the various policy and planning considerations all over again. The general principle is that new evidence and/or new submissions should not be entertained as a basis for quashing an Inspector's decision if this would mean an Inspector would have to make further findings of fact and/or reach a new planning judgment (see e.g. R (Newsmith Stainless Limited) v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126 [15]). 180. As in civil proceedings more generally, resources for planning inquiries and hearings are finite and need to be distributed efficiently between all parties seeking to have planning issues resolved. There is therefore a strong public interest in the finality of such proceedings. Parties are generally expected to bring forward their whole case when a matter is heard and determined. No proper justification has been advanced by Redrow for the court to exercise its discretion exceptionally to entertain a new point which could have been, but was not, raised before the Inspector.”
[10]On the question of the circumstances in which the relative proportions of PDL and undeveloped land need to be assessed in a Green Belt analysis, the judgment of Ousley J. in R (on the application of Lee Valley Regional Park Authority) v Broxbourne BC [2015] EWHC 185 (Admin) is of assistance:
“51. This is not a case in which the previously developed land is so large a proportion of the whole site as to make the distinction one which could reasonably be ignored. While I accept Mr Harwood's point, that the flexibility in the NPPF for previously developed land may not require every part of the application site to have been previously developed land, the presence of some previously developed land within an application site does not make the whole site previously developed land either, applying the definition in the NPPF. The NPPF itself draws a limit on whether a site is previously developed land by reference to the curtilage of the buildings.”
THE PRELIMINARY ISSUE The Planning Appeal[11]Following the refusal of planning permission, the Second Defendant submitted an appeal which was duly heard at a one-day planning hearing on 23 July 2024. It is helpful to understand the events leading up to the hearing and the documents and arguments which were before the Inspector.[12]The Officer’s Report to Committee set out an assessment of the proposal against development plan and national policies and other material considerations. It contains an assessment of Green Belt policy and concludes: “Section 13 of the NPPF states 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 resulting from the proposal, is clearly outweighed by other considerations. A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt unless they meet one of the exception criteria listed in paragraph 149 of the NPPF; none of which apply here. The development proposal is inappropriate development which is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances…” [my emphasis][13]That part of the analysis fed into a final recommendation that permission should be refused for five reasons, the second of which was:
“The proposal would result in inappropriate development within the Green Belt which would be harmful to the Green Belt character and would result in loss of openness by virtue of the scale and siting of the built development and the enclosing landscape. There are no very special circumstances that exist to justify allowing this inappropriate development and loss of openness. Therefore, the proposal would be contrary to Key Statement EN1 of the Ribble Valley Core Strategy 2008-2028 and the National Planning Policy Framework.”
[14]Both parties duly submitted Appeal Statements or Statements of Case setting out their respective positions prior to the planning appeal.[15]The Claimant’s Statement of Case: The Claimant’s Appeal Statement sets out the history of the application, a description of the site and proposal and relevant development plan and national policies. Paragraph 5.34 quotes section 13 of the NPPF regarding Green Belt policy. The paragraph ends by stating:
“A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt unless they meet one of the exception criteria listed in paragraph 149 of the NPPF; none of which apply here.”
[16]The reference to paragraph 149 is an incorrect reference to the exceptions listed in paragraph 154. Irrespective of that (immaterial) error, it is clear that the Claimant’s position was that the proposal was inappropriate development because none of the exceptions pertaining to the construction of new buildings applied.[17]The Statement of Case then deals with each of the Claimant’s arguments in relation to the five reasons for refusal. Paragraphs 5.36 to 5.42 set out in some detail the dimensions of both existing and proposed development, before concluding that the proposal would result in an increase of built form of over 240% above that of existing buildings in terms of the assessment on openness. The assessment goes on to consider the effect of the development on the principle of encroachment and the extent to which the loss of openness would be visible. It then concludes that substantial weight should be given to the Green Belt harm by virtue of being inappropriate development and the harm by virtue of loss of openness.[18]The statement references the Second Defendant’s contention that the proposal satisfied paragraph 84(e) of the NPPF in that the proposal was of exceptional quality which was sufficient to justify a conclusion that very special circumstances exist. The Appeal Statement then makes a concluding statement which addresses the isolated location of the development in paragraph 6.1 and which goes on to conclude that the exception tests in paragraph 84 are not satisfied and that the proposal would lead to the creation of a new dwelling outside settlement limits, within the Green Belt but without sufficient justification.[19]The Second Defendant’s Statement of Case: at the very beginning of the Statement, the Second Defendant sets out clearly the basis on which the appeal was being pursued:
“1.2 It is important to note at the outset that the application, and consequentially this Appeal, is a proposal to create a new English Country House, which is a long-standing and important exception for new dwellings in the countryside, now subject of paragraph 84(e) of the National Planning Policy Framework (‘the NPPF’). The country-house exception raises issues of public importance in fostering architecture of the highest quality in the English countryside. The country-house exception in paragraph 84(3) also has a long history of being applied so as to represent the “very special circumstances” for such development in the Green Belt (engaged here)…”
[20]That paragraph encapsulates the basis on which the case was put. The statement goes on to set out the background and relevant policy considerations before undertaking an assessment of the proposal against development plan policies. A number of paragraphs deal with the principle of isolated dwellings in the countryside before going on to put the case for a policy exception to isolated dwellings under paragraph 84(e) of the NPPF. Particular reference is made to exception (e) which applies where the design is of exceptional quality and the tests under that exception are set out and the Second Defendant’s case in relation to those tests is dealt with.[21]The appeal statement describes the Site as follows:
“3.1 The Appeal site is located on the south of Further Lane and is currently in commercial equestrian use. In the western portion of the site is menage and series of buildings that are served by a decorative gated entrance flanked by pillars onto Further Lane. In the north-east corner of the site are wooden stables served by a wooden gated entrance onto Further Lane.”
[22]The statement then goes on to address each of the five reasons for refusal. It says this in relation to Green Belt:
“7.3.1 RfR 2 raises concerns regarding the impact of the proposal on the Green Belt. However, the whole point of the scheme and its outstanding quality …is that it clearly satisfies the policy test under paragraphs 152 and 153 of ‘very special circumstances’ such that any harm to the Green Belt and any other harm is clearly and demonstrably outweighed by a number of other considerations.”
[23]The Appeal Statement of the Second Defendant set out his case on each of the issues. In relation to Green Belt considerations, the case was put on the basis that it was accepted that the development represented inappropriate development within the Green Belt but that any harm was outweighed by other factors (including an iconic design) such that very special circumstances existed. That much is clear from paragraph 8.4 in the conclusions section which states that very special circumstances existed because the proposal accorded with paragraph 84(e) of the NPPF and the Second Defendant was relying upon the outstanding design which, he said, accorded with paragraph 139 of the NPPF.[24]Neither party therefore argued in their written statements of case that the entire Site or part of the Site was previously developed land. Neither party contended that the exception within paragraph 154(g) applied and the relevant tests were met. Relevant policies in the NPPF[25]Paragraph 152 of the NPPF confirms that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. Paragraph 154 confirms that the construction of new buildings should be regarded as inappropriate development in the Green Belt but that there are exceptions.[26]The exception in NPPF paragraph 154(g) provides that the construction of new buildings should be regarded as inappropriate development in the Green Belt unless it comprises:
“g) limited infilling or the partial or complete redevelopment of previously developed land whether redundant or in continuing use (excluding temporary buildings), which would: - not have a greater impact on the openness of the Green Belt than the existing development; or - not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority.”
[27]It is useful to set out here the definition of PDL as it appears in the glossary to the NPPF. PDL is defined as:
“Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or was last occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill, where provision for restoration has been made through development management procedures; land in built-up areas such as residential gardens, parks, recreation grounds and allotments; and land that was previously developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape.”
[28]In order for the proposal to qualify for the exception within paragraph 154(g), any decision maker would have to be satisfied of two matters. Firstly, that the proposal site comprised previously developed land within the meaning set out in the glossary. Secondly, they would have to be satisfied that the proposal did not have a greater impact on the openness of the Green Belt than the existing development. That is the exercise which would have to be undertaken before it could be concluded that the Proposal fell within the exception and it was not therefore inappropriate development in the Green Belt. The Appeal Hearing[29]The positions of each of the parties on entering the appeal hearing were clear from their respective written statements of case. The appointed Inspector then prepared an agenda prior to the appeal hearing, to guide discussions. The agenda set out the main issues, including whether the proposal would be inappropriate development in the Green Belt having regard to national and development plan policies.[30]There is a dispute between the parties as to whether or not, at the hearing, the Council made a concession in relation to the paragraph 154(g) exception and in particular whether the Site was PDL. At the hearing the Council was represented by a Principal Planning Officer, Ms Kathryn Hughes and her colleague Stephen Kilmartin. Her witness statement records that the following position was put on behalf of the Council to the Inspector:
“11. The Claimant has never disputed that there were some small structures within the wider site, but it was the Claimant’s position that those structures would not render the site to be determined as PDL. I made this clear to the Inspector at the hearing and I recall making reference to the existing site plans in terms of the existing structures… 12. Notwithstanding the Claimant’s position as set out above, the Claimant also set out its case that in respect to the remainder of paragraph 154(g), and that if the Inspector were to take a different view on the definition of PDL and its application to the site, then the exception would still not be engaged, because the tests of impact on the openness of the green belt would not be met. I recall my colleague Stephen Kilmartin stating this position at the hearing.”
[31]Ms Hughes confirms that the Claimant maintained a position consistent with its Statement of Case at the hearing. She said that the Claimant’s officers confirmed that, if the Inspector took a different view and concluded that the Site did fall to be considered as PDL, then the Claimant’s position was that the proposal would still not fall within the exception in paragraph 154(g) because the second limb “would be engaged” for the reasons which Ms Hughes had set out in her witness statement. Her witness statement says this: “15. The Claimant maintained this position at the hearing. The Inspector sought clarification of the position during the hearing and Stephen Kilmartin on behalf of the Claimant confirmed that if the Inspector took a different view from the Claimant and found that the site did fall within the definition of PDL, then notwithstanding that, the exception would not apply as the second limb of the test out in paragraph 154(g) would be engaged for the reasons set out above. The submission was in my view particularly relevant in this case given that the proposed development was to be located on a part of the site, which is currently free from built form, a point which I highlighted to the Inspector at the hearing.” [my emphasis][32]Read in context the second sentence in that paragraph means that if the Inspector considered the Site to be PDL, the proposal would not satisfy the sub-paragraph (g) requirements on the impact on openness and the proposal would not fall within the exception. The use of the word “engaged” is of particular note here because it is indicative of how Ms Hughes is using that term. She is using it to say that the second limb of the test is failed because the Claimant’s view was that the proposal would have a greater impact on the openness of the Green Belt than the existing development.[33]Mr Francis Shaw and Mr Matthew Massarella-Gill, two representatives of the Second Defendant have also supplied witness statements setting out their recollection of discussions at the hearing. Mr Massarella-Gill’s witness statement exhibits his handwritten notes taken contemporaneously during the hearing. Helpfully the notes contain timings. After preliminary discussions about the agenda and development plan policy matters, at 10.56am the discussion moves on. The notes record the following:
“10.56 PINS: both accept equi-use, are we not into p.154g? RVBC: 2 sides of the site/stables to southwest, proposal to northeast. Prop would have greater impact on openness 11.00 JS: Good to see RVBC accept 154g is engaged? If that is engaged impact must be assessed. D44 montages show the existing/proposed impact. Parkland setting is significant, RH to assist, but D44 shows the character and to preserve the character. PDL removal is irrelevant (previously developed land) 11.11 RH: Well settled & wooded landscape character as noted in the RVBC landscape character appraisal…”

PDL removal is irrelevant (previously developed land)

[34]The note about the Council Officers’ comments (RVBC) accord with Ms Hughes comments and the Council’s assessment that the existing structures and some development was focused in different parts of the Site. It further accords with Mr Masseralla-Gill’s notes as to the Claimant’s response that there were “2 sides of the site/stables to the southwest, proposed to northeast”. Some four minutes after the topic of paragraph 154 appears to have been introduced by the Inspector, Mr Strachan (JS) on behalf of the Second Defendant was commenting that it was good to see that the Council accepted that paragraph 154 was “engaged”.[35]The discussions from 11.11 onwards relate to landscape character with various points being made. At 11.31 the Inspector, (PINS), moves the discussion on to questions about reliance on the private motor car and Mr Strachan (JS) makes reference to NPPF paragraph 84(e) and exceptional quality. At 11.45 the Council replies that the site is not isolated so “84(e) doesn’t engage”. There are then submissions about the quality of the architecture from 11.45 until the luncheon adjournment at 13.20. The notes recommence at 14.10 when there are discussions about the effect on character and appearance, the outstanding nature of the proposal is emphasised by JS and the extent of views of the proposal. At 15.16 the discussion moves on to the historic environment before discussions on the natural environment commence at 16.24.[36]The closing comments of the parties are briefly recorded at the end of the notes as follows:
“16.32 Harm/Inappropriateness JS: Summary P84(e) isolated or note, prop is still outstanding RVBC: Summary. Main tests not met, don’t think VSC can be met”
JS: Summary P84(e) isolated or note, prop is still outstanding RVBC: Summary. Main tests not met, don’t think VSC can be met”

JS: Summary P84(e) isolated or note, prop is still outstanding

[37]Mr Masseralla-Gill, in his witness statement, fleshes out the notes. He says that the Inspector suggested that paragraph 154(g) was “engaged” and that the Council’s representatives agreed that it was engaged but they confirmed that the proposal would have a greater impact on openness. He goes on to say that the Council explained that there were two sides of the site and in its view the proposal would have a greater impact on openness. That is consistent with Ms Hughes comments and the Council’s previous reference to the Site having two sides with built development in the corners of the Site.[38]Mr Francis Shaw adds to the witness statement of Mr Masseralla-Gill and observes that Mr Strachan stated to the Inspector and the two Council Officers that it was “good to see that the Council accepted that paragraph 154(g) was engaged” and the Council Officers nodded their agreement. His statement goes on to note that the Council did not argue that the site was not previously developed land.[39]The Inspector has also supplied a witness statement. The relevant part of the Inspector’s notes reads as follows:
“JS. Fw154g- Council now accepts this can be engaged vs previous simple mention of There is PDL; in equestrian use Demolition & concentration Is it a greater impact on openness -maths, spatial, visual, perception All of the equestrian dev/uses are PDL So/ie not agriculture Openness- parkland setting is significant for openness terms --PDL across rest Of site is removed House is set up ”
There is PDL; in equestrian use Demolition & concentration Is it a greater impact on openness All of the equestrian dev/uses are PDL So/ie not agriculture Openness- parkland setting is significant for openness terms Of site is removed House is set up ”

Of site is removed

[40]In his witness statement the Inspector says that in his view the Council’s position was they had considered Fw154(g) exception, and agreed that it could apply, subject to conclusions on openness. He says that the appellant was heavily involved in the discussion on openness and that the appellant was pleased that the Council now acknowledged that it could apply subject to conclusions on openness. At paragraph 7 onwards the Inspector says that: “7. As such, the discussion at the hearing led me to consider that there was no dispute over the status of the land as Previously Developed Land (PDL), that it was not a principal important controversial issue. The evidence of the Council at the hearing made that Fw154(g) could apply, subject to findings on openness, which was a main issue. The discussion at the hearing then moved on to openness as set out in the decision. 8. My notes do not record a clear concession in relation to PDL but those notes are not verbatim and my understanding at the hearing, and then whilst writing my decision, to the best of my recollection, is that the Council agreed that the site was PDL” [my underlining][41]I have also noted the contents of paragraph 15 of the Decision Letter which, after recording that the Council discounted the exception in paragraph 154 owing to their conclusion on openness, the Inspector states:
“15. Despite that, it is clear to me, given the equestrian use of the site and the distribution of equestrian equipment across it, that the site is previously developed land, and the proposal would be redevelopment of it.”
[42]If both parties had accepted at the hearing that the Site constituted PDL, then one would have expected any such concession or agreement to have been referred to in this paragraph. Instead, this paragraph relies solely on the Inspector’s own analysis to underpin the conclusion that the Site was PDL. Going into the appeal hearing both parties presented their cases on the basis that the proposal constituted inappropriate development. There was no explicit contention by either party that the Site comprised PDL.[43]The discussions on the application of paragraph 154(g) at the hearing appear to have taken place very quickly, they were commenced at 10.56, at 11.00 the Claimant’s legal representative made reference to the Council accepting that paragraph 154(g) was ‘engaged’ and that consequently impact must be assessed. By 11.11am matters had moved on to a discussion as to landscape character.[44]There is no record in any contemporaneous notes to an acceptance by the Claimant that the site constituted PDL. Neither is there any note of an explicit submission by the Second Defendant that the site was PDL. Indeed, the Inspector’s own witness statement records him drawing an inference from the discussions that there was no dispute about the status of the Site as PDL. That is surprising since the written cases of the parties are silent as to this issue.[45]At the end of the hearing, Mr Masseralla-Gill’s notes record the heading “Harm/inappropriateness” and set out the Claimant’s short summary that the main tests are not met and the Claimant did not think that the proposal met the very special circumstances test. That closing comment effectively indicated that the Claimant still maintained that the proposal constituted inappropriate development and by inference that it did not pass the tests in paragraph 154(g). Similarly, the Second Defendant’s summary did not state that the Site was PDL or that the test in paragraph 154(g) was passed, instead it concentrated on the policy test in paragraph 84 relating to isolated dwellings in the countryside and the outstanding design of the property, which was the main thrust of the Second Defendant’s written case. Analysis of the Preliminary Issue[46]I have concluded that the claim is consistent with the position advanced by the Claimant at the appeal hearing. There is no persuasive evidence that there was any concession by the Claimant at the hearing that the Site was PDL. This is not a case in which there is inconsistent factual evidence. None of the evidence indicates that the Claimant accepted in terms that the Site was PDL. At most the evidence points to a misunderstanding of the parties' respective positions in a fast-moving discussion.[47]Examination of the parties’ statements and cases and other documents before the Inspector reveals that both parties had presented their cases on the basis that the Site was accepted to be inappropriate development. The Second Defendant’s opening synopsis in his Statement of Case points out that an appeal was being run on the basis that the country house exception in paragraph 84(e) was satisfied and this constituted very special circumstances in the Green Belt balance. Neither party had properly considered or grappled with the exception in paragraph 154(g). It appears to have been first raised by the Inspector in the hearing discussions. That was proper given that the Inspector was applying national policy and testing the proposal against it. The first question in any Green Belt case is to ascertain whether the development proposed would constitute inappropriate development.[48]For the exception test in paragraph 154(g) to be met, both limbs of the relevant part of the test had to be satisfied. To apply the policy tests, one would need to consider and make decisions on both limbs. The discussions around paragraph 154(g) appear to have taken place quickly before discussions moved on to other matters. Neither the Claimant nor the Second Defendant’s witness statements refer to any explicit discussions about whether the Site was PDL.[49]An agreement by the Council Officers that the Site was not inappropriate development would have run counter to the Claimant’s written case and the Second Defendant’s own written case. Both cases were largely silent as to the question of PDL. The Inspector’s own evidence is that he did not consider PDL a principal important controversial issue, which is somewhat surprising given that both parties had accepted in their written cases that the development was inappropriate, and no-one had put forward a positive case that it was PDL.[50]The Inspector’s own note records that the Claimant accepted that paragraph 154(g) can be engaged. That is far short of an acceptance that the tests within that sub-paragraph have been met and the proposal satisfied the tests. It is more akin to the need to have regard to the policy and apply the tests. Neither do the Inspector’s handwritten notes say that the Council accepted that 154(g) could be engaged subject to findings on openness, although I note that the Inspector’s witness statement says that that was the evidence of the Council at the hearing. The term ‘engaged’ is also not precise. It appears to have been first used by Mr Strachan in discussions and put to all parties that the Council accepted that paragraph 154(g) was engaged. In her witness statement Ms Hughes appears to use the term engaged to mean that the second limb was not passed.[51]Ms Hughes’ evidence that the Claimant repeated that the Site was not PDL is not contradicted by the other evidence but rather points to a misunderstanding of the Claimant’s position given the speed at which the discussion moved on. I reject Mr Strachan’s submission that the Claimant’s contention is directly contradicted by the clear evidence of both the Inspector and the Second Defendant. There is no direct contradictory evidence, and the evidence is far from clear on the matter. The evidence is generalised, the reference to ‘engaged’ is not clear and appears to mean different things to different parties and the contemporaneous documents do not contain the clear concession which the Second Defendant contends was made. Indeed, the timed notes of Mr Masseralla-Gill point to a very cursory discussion on paragraph 154(g) in the context of a hearing which lasted for a full day.[52]I therefore reject the submission that this is a case in which the Second Defendant’s position should be accepted by the Court as was the case in R(Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518. The generalised claims of the Second Defendant’s witnesses are contraindicated by the absence of a contemporaneous note which says, in terms, that the Claimant had conceded that the Site was PDL given that this point ran counter to the written cases of both parties. Given the importance of such a concession to the application of the policy tests one would have expected to see such a reference in both of the contemporaneous notes before the Court.[53]For all of these reasons, I am satisfied that the claim is not contrary to the Claimant’s position at the appeal hearing. But, even if it was not the Claimant’s stated position at the hearing that the Site was not PDL, then the question of the status of the land as PDL was a main issue in the hearing since the question went directly to the policy tests in paragraph 154(g) and the issue of whether the proposal was inappropriate development.[54]The Inspector himself reached a conclusion that the Site was PDL in paragraph 15 of the DL. By implication that conclusion extends to the whole of the Site. The matter was squarely before the parties at the hearing with the introduction of paragraph 154(g) and the Inspector came to a planning judgment on that matter.[55]Mr Strachan has sought to persuade me that the Claimant’s claim is put on the basis that the Site had to be sub-divided into portions which would require some further findings of fact. However, that argument could only relate to sub-ground 1 of the claim which, if it had been argued that the Site should have been sub-divided, would require some findings to be made in any event. The remaining three sub-grounds of the claim relate to a failure to give reasons; taking an immaterial factor (the equestrian use) into account; and irrationality.[56]In accordance with the decision in Newsmith, in these circumstances, I am satisfied that it is appropriate to allow the claim to proceed. There would be no material prejudice to the Second Defendant. The claim would not require some further finding of fact or planning judgment given that the Inspector’s conclusions on the issue of PDL are contained within the DL. THE SUBSTANTIVE MERITS The Decision Letter (DL)[57]At DL8 the Inspector sets out the main issues as follows:
“Having regard to the decision of the Council, the cases made and the commentary above, the main issues are: • Whether the proposal would be inappropriate development in the Green Belt having regard to the Framework and any relevant development plan policies. • The effect of the proposal on the openness of the Green Belt. • Whether or not the design of the proposal is of exceptional quality; • The effect of the proposal on the character and appearance of the area; • The effect of the proposal on the historic environment; • Whether or not the site is in a suitable location for the development proposed, having regard to its location outside of any defined settlement boundaries and the likely reliance on the private car; • The effect of the proposal on the natural environment; and, • Whether any harm by reason of inappropriateness, and any other harm, would be clearly outweighed by other considerations, so as to amount to the very special circumstances required to justify the proposal if required.”
[58]At DL12 and DL13 the Inspector starts to consider whether the proposal was inappropriate development by reference to the exception in paragraph 154(g).[59]At DL14 the Inspector records that “the Council did confirm at the hearing that they considered this exception but discounted it owing to their conclusion on the effect of the proposal on openness”. He says this:
“14. Although they have not made it clear in their evidence, the Council did confirm at the hearing that they considered this exception but discounted it owing to their conclusions on the effect of the proposal on openness. 15. Despite that, it is clear to me, given the equestrian use of the site and the distribution of equestrian equipment across it, that the site is previously developed land, and the proposal would be redevelopment of it. 16. As such, the proposal may not be inappropriate development in the Green Belt if the proposal does not have a greater impact on the openness of the Green Belt than the existing development.”
[60]DL15 is in essence the application of the first part of the test in paragraph 154(g), it is the Inspector’s analysis and conclusion that the Site is PDL and the proposal would entail redevelopment of it. Therefore, as DL16 goes on to say, in those circumstances the proposal would benefit from the exception in paragraph 154(g) if the proposal would not have a greater impact on the openness of the Green Belt.[61]At DL17 the Inspector goes on to assess the effect of the proposal on the openness of the Green Belt and he concludes at DL18 that, notwithstanding a volumetric increase in built form on the Site, the proposal would result in an increase in both the “visual and spatial openness of the Green Belt”. This finding is, in turn carried forward into his final conclusion at DL22. “On a site specific assessment, in light of the above, I find that the proposal would not have a greater impact on the openness of the Green Belt than the existing development. It is therefore not inappropriate in the Green Belt having regard to the test at paragraph 154g of the Framework.”[62]The next sections of the DL deal with issues relating to the design of the development and whether or not it was exceptional; the effect of the proposal on the character and appearance of the area; the effect on the historic environment; whether or not the house would be in a sustainable location; and finally the effect on the natural environment. At DL78 the Inspector explains that there is no need to consider the question of very special circumstances, given that he has concluded that the development falls into the paragraph 154(g) exception. The Grounds of Claim[63]The claim is brought on a single ground with four sub-grounds, namely: the Inspector failed to apply the correct approach under Broxbourne and therefore unlawfully concluded that the entire Site was PDL; the Inspector failed to provide adequate reasons; the Inspector took into account an irrelevant consideration; and the Inspector’s conclusion that the entire Site was PDL was irrational in any event. Sub-ground (1): failure to apply the Broxbourne approach[64]Mr Sheikh for the Claimant contends that the Inspector failed to apply the correct approach in relation to his assessment of PDL. Mr Sheikh says that the Inspector should have considered the extent to which parts of the Site comprise PDL and as a result whether the Site as a whole was PDL, or alternatively whether only parts of the Site were PDL. Mr Sheikh contends that this error is apparent when one considers how the Inspector describes the visual effects of the Site, referring to the piecemeal spread of development across the site at DL47. “47. In terms of wider visual effects, the proposal would, through the landscaping and planting proposed screen the Woodford Park Farm development from Further Lane and the site, and would remove the equestrian development, which appears as a somewhat piecemeal spread of development across the site. Whilst I accept that the existing equestrian development is largely at the opposite end of the site to the proposal, both it and the proposal are a similar distance from the boundary of the RPG.”[65]On behalf of the Second Defendant, Mr Strachan contends that the glossary definition of PDL is open textured; it requires the decision-maker to exercise a planning judgment and to make findings. He says that the definition of PDL is not confined to building footprints and their curtilages, but it also includes land covered by any permanent structure and associated fixed surface infrastructure. Whilst I note that Mr Masseralla-Gill’s notes record that both parties accepted that the Site was in equestrian use, that did not equate to an acceptance that the Site was PDL in whole or in part.[66]Both parties accept that the Broxbourne case establishes that the definition of PDL in the NPPF has flexibility in that a finding that land is PDL may not require every part of the application site to be found to be PDL. Mr Justice Ousley also said that the presence of some PDL within an application site does not make the whole site PDL either. The point is that some sites will be comprised of PDL to such an extent that the inclusion of some parcel which is not PDL does not alter a conclusion that the site is PDL without any detailed analysis being needed. At the other end of the scale there will be some sites in which a small corner contains PDL, but the remainder of the site is not PDL. Again, such a site will not require a more detailed assessment as to its various parcels before a conclusion can be reached that it is not PDL.[67]There will however be other sites which contain a mixture of PDL and land which does not fall within the PDL glossary definition. In the Broxbourne case, this was the situation; whilst there was some PDL, it was not so large a proportion of the whole site as to make the distinction (between PDL and non-PDL land) one which could reasonably be ignored.[68]In this case, at DL15 the Inspector has made a finding that the Site is PDL. The question which arises is: was this a site in which the PDL was so large a proportion of the whole site such that the Inspector need not have applied his mind to the relative proportions of PDL and non-PDL land. In addition to the observations at DL47 quoted above, the Inspector’s descriptions of the Site are found in the following paragraphs of the DL: “9. The site is currently in equestrian use, with associated buildings and development across the whole site but somewhat concentrated at the western end.” ‘36…the appeal site is in equestrian use, with related development and equipment across the site. Parts of it are overgrown and unmaintained, and there is a general spread of equestrian-paraphernalia”.[69]There is a recognition at DL47 that there is a piecemeal spread of development and that the existing equestrian development is “largely at the opposite end of the site to the proposal”. That chimes with the findings at DL9 that it is concentrated at the western end. The description at DL36 is more vague, there is no differentiation between development and equipment or to the distribution of each of these elements.[70]The Officer’s Report describes the Site as 5.68 hectares of land used for horse grazing with two existing buildings used for equestrian purposes on it. The red line plan of the Site depicts buildings in the north-eastern corner of the Site and four parcels of land which are paddock areas in the middle of the Site. The mixed nature of the Site provides a clear indication that some assessment is needed as to the extent of development and its curtilage and any other associated fixed surface infrastructure comprising PDL on the Site.[71]When one looks at the descriptions of the Site in the appeal documentation and the Inspector’s own assessment within the DL, it appears that the equestrian development was concentrated within the part of the Site at the opposite end to the proposal and that development is spread piecemeal across the site. The Inspector’s own descriptions based on his Site inspections confirm this.[72]The Inspector appears to have undertaken an assessment of the Site and concluded that the whole Site was PDL. His bare conclusion that the Site was PDL gives no indication that he has taken into account the different elements and parcels of the Site and their differing characteristics as against the glossary definition. The Inspector has however acknowledged the piecemeal spread of development, and the differing characteristics of different parts of the Site. Given that description and the particular characteristics of this Site, it is clear that he ought to have properly gone on to explain how he came to a final conclusion that the whole site was PDL. A more detailed analysis as to the constituent parts of PDL was needed to support a lawful conclusion that the whole Site was PDL.[73]Given the characteristics of this particular Site, it was necessary to have explained how the constituent elements of the Site contributed to such a conclusion. The Inspector has not undertaken the Broxbourne exercise which this Site requires due to the piecemeal spread of development and the concentration of equestrian development at one end of the Site. These factors called for some analysis as to the relative proportions of PDL. His analysis of the PDL question was therefore flawed. Sub-ground (2) Failure to provide adequate reasons[74]Mr Sheikh’s complaint under this sub-ground is that the assessment and conclusion that the entire Site was PDL was contained in one sentence at DL15. He submits that the Claimant is unable to understand the basis on which the Inspector came to his conclusion that the Site was PDL. This gives rise to substantial doubt that the Inspector lawfully applied the NPPF definition of PDL.[75]In circumstances where neither party was promoting a positive case that the Site was PDL at the beginning of the Hearing, the application of the policy in paragraph 154(g) to the facts of the case needed to be explored and a judgment arrived at in relation to whether the proposal fell within the exception. It is insufficient to contend, as Mr Strachan does, that the Claimant was not contending that the Site was not PDL. Neither party appears to have applied their mind to the question prior to the hearing. The heart of the dispute going into the hearing appeared to be the question of the so-called mansion exception in paragraph 84 and whether that constituted very special circumstances in the context of Green Belt harm.[76]I have concluded that the Inspector needed to do a Broxbourne assessment in the context of this particular Site. The single sentence in DL15 is insufficient to demonstrate the sort of analysis required or the basis on which the Inspector applied the definition of PDL to the Site. This leaves some doubt as to whether the correct policy definition was applied. The reasoning is cursory and does not enable the Claimant to understand the basis on which the Inspector determined that the whole Site fell within the definition of PDL. Sub-ground (3): taking into account an immaterial consideration[77]Mr Strachan submits that at DL15 the Inspector was making a finding that the use was equestrian as opposed to agricultural because that was a point of dispute in the case. Mr Strachan went on to say that the Inspector had to make a finding that there was an equestrian use across the Site before he could consider the question of equestrian development contributing to PDL. The Inspector he says, was referencing the large menage structure, hardstanding and car parking which had all been granted planning permission as part of the equestrian use and that was the equestrian development to which DL15 refers.[78]In his oral submissions Mr Strachan contended that the Claimant had asserted that the Site was in agricultural use in paragraph 5.36 of the Statement of Claim. However, I note that paragraph 5.36 is merely a record of the development which was granted planning permission and the word “agricultural” seems to have been included in the planning permission as recorded in the relevant planning history earlier in the Statement as follows:
“3/2012/0359- Proposed construction of agricultural building for stables and a 40m x 20m menage. Close off the existing field gate and construct a new field access, gravel track and 6no. parking spaces- Approved with conditions.”
[79]Mr Strachan referred me to the Second Defendant’s Statement of Case which records:
“7.5.2 The current character of the commercial equestrian development is harmful to the visual amenity of the Registered Park and Garden, which is recognised by RVBC within the Officer Reports for applications 2012/0359 and 2020/0011 7.5.3 The existing buildings are not agricultural, which is alleged in the Officer Report. Instead, the buildings accommodate a commercial use run on an intensive basis which harms the setting to Woodfold Park…”
[80]Mr Strachan contends that one needs to understand that this was a point of dispute between the parties which the Inspector was resolving in DL15 before he went on to make the finding that the distribution of equestrian development across the Site meant that the Site was PDL.[81]I accept that there may have been a difference between the parties about the use of the Site and that within the hearing the parties agreed that the Site was in equestrian use. However, that does not explain the structure and construction of DL15. The preceding paragraph records that the Council discounted the exception due to their conclusions on the effect of openness. The opening words of the next paragraph are “Despite that, it is clear to me, given that…” The conclusion that the Site was PDL was based on two elements, the equestrian use and the distribution of equestrian development across the Site.[82]I therefore reject Mr Strachan’s proposition that the Inspector was referencing the equestrian use before considering the disposition of physical development across the Site. On the basis that an equestrian use had been agreed it would have only been necessary to refer to equestrian development to arrive at the conclusion. The words “equestrian use” are superfluous if equestrian development was solely being relied upon to assess the PDL. Inclusion of the words equestrian use and the important connector “and” means that both equestrian use and equestrian development contributed to the conclusion.[83]I therefore conclude that the Inspector took into account an irrelevant consideration. Sub-ground 4: Irrationality[84]Mr Sheikh contends that the Inspector’s conclusion that the entire Site was PDL was irrational because the vast majority of the Site was grassland in the form of paddocks and therefore undeveloped. I have already rejected Mr Strachan’s first submission that the Inspector was reaching the same view as the Claimant. His second submission is that it is a rational judgment to reach given that there is substantial built development and other associated fixed surface infrastructure spread across the Site as the Inspector found.[85]It is difficult to know on what basis the Inspector reached his conclusion. It was not in the clear terms set out by Mr Strachan. I have already concluded that this was a Site which required a Broxbourne assessment as to the extent of PDL elements across the different parts of the Site. This is clearly a Site which does not have a uniform spread of development. The Site plan and the Second Defendant’s description of the Site point to a Site which has built development and menage contained in the western portion and the north-eastern corner. “3.1 The Appeal site is located on the south of Further Lane and is currently in commercial equestrian use. In the western portion of the site is menage and series of buildings that are served by a decorative gated entrance flanked by pillars onto Further Lane. In the north-east corner of the site are wooden stables served by a wooden gated entrance onto Further Lane.”[86]The extent and spread of the piecemeal equestrian development and associated fixed surface infrastructure needed to be assessed. The site is a large one with some buildings in the western part and some buildings in the north-eastern part and piecemeal development in the largest area comprising the paddocks. Given the paddocks form by far the largest part of the Site, it was unreasonable to ignore large areas of a Site of this nature and for this reason I am satisfied that the conclusion that the entire site was PDL was irrational.[87]Whilst both parties have made submissions in relation to the First Defendant’s concessions in this case, I must make it clear that I have determined the case on the basis of the written and oral submissions of the Claimant and Second Defendant. I have not therefore found it necessary to address any of the arguments raised about the First Defendant’s position. Relief[88]The grant of relief in a statutory review is discretionary. The constraints on relief contained in section 31(2A) – (3F) of the Senior Courts Act 1981 do not apply but regard is to be had to the approach set out in Simplex Simplex GE (Holdings) Ltd v Secretary of State for Communities and Local Government [2017] PTSR 1041 .[89]In Simplex the Court of Appeal said that a decision will not be quashed on the ground of irrationality if the court is satisfied that the decision would have been the same if the decision-maker had acted rationally. That requires the court to address whether the decision would have been the same even if a consideration found to have been irrelevant had not been taken into account or if an overlooked relevant factor had been taken into account. The hurdle is a high one. It is not sufficient that the decision would have been likely to have been the same but, instead, the court must be satisfied that the decision would necessarily have been the same.[90]I have concluded that the Inspector unlawfully applied Green Belt policy and in particular the paragraph 154(g) exception to all of the Site. That error would have infected the assessment on openness and the weight to be applied to any harm to the Green Belt by virtue of inappropriate development (so-called definitional harm). I have noted the Inspector’s conclusion that the proposal would increase the visual and spatial openness of the Green Belt, notwithstanding the volumetric increase in built form. The harm by way of being inappropriate development attracts substantial weight on its own and would fall to be considered in any Green Belt balance when considering whether there were very special circumstances.[91]Mr Strachan submits that any argument that the exception under paragraph 154(g) can only apply to those parts of a Site which met the definition of PDL is untenable since the siting of new built form would have to be on the footprint of any pre-existing built form but there is no such requirement in paragraph 154(g). However, that is to conflate the partial or complete redevelopment of PDL (the policy wording) with the partial or complete redevelopment of a Site which is in part PDL. The policy wording anticipates and applies to new buildings which are constructed on land which comprises PDL. Here the proposal is for the redevelopment of land which is in part PDL and in part non-PDL. The policy implications and effects on both parts would need to be assessed.[92]In this case, had there been an appropriate Broxbourne assessment, it would have been concluded that inappropriate development was proposed, constituting a breach of Green Belt policy on the parts of the Site which were not PDL. Substantial weight must be attached to harm by way of inappropriate development in the Green Belt and a subsequent assessment needed as to whether very special circumstances applied given the other material considerations which would have included the positive conclusions on openness. I do not know how the planning balance would have been assessed since these exercises were not done.[93]I have come to the conclusion that it cannot be said that the outcome would necessarily have been the same if the errors had not occurred. I therefore grant the Claimant’s request to order that the Decision be quashed. I would ask Counsel to draw up an Order reflecting the terms of this judgment together with appropriate provisions in relation to costs.