Planning matters

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A recent Court of Appeal decision at Redhill Aerodrome has provided clarity as to how the issue of ‘harm’, in the context of development within the Green Belt, should be considered under the National Planning Policy Framework (NPPF). The decision quashed an earlier High Court Judge’s Order which had interpreted the NPPF in such a way as to affect a drastic policy shift from its predecessor (PPG 2). The resulting case law will be relevant to all development that may be considered to impact the Green Belt and is not specific to Airports. The case was born from a planning application at Redhill Aerodrome in August 2012 to tarmac the grass runway (a site that is within the Green Belt and crosses two administrative boundaries). After refusal and dismissal at appeal, the appellant had the Planning Inspectors decision quashed at the Court of Appeal. Mrs Justice Patterson, of the Planning Court, found that the Inspector had applied an incorrect interpretation of the NPPF with respect to harm in the Green Belt. More specifically, with reference to paragraph 88 (below), she found that the term ‘any other harm’ must, in this context, apply only to harm in the context of the Green Belt. “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.” As a result, she found that non-Green Belt harm should not be considered (either individually or collectively) when weighing up if very special circumstances exist. The significance being that not all planning harm caused as a result of the development would be considered when determining whether a development sufficiently demonstrates or indeed needs to demonstrate very special circumstances. The Judgement However, the Court of Appeal judges found that Mrs Justice Patterson had not had proper regard to the intent of the NPPF. They found that the drafting of the NPPF gave no reason to believe that such a dramatic policy shift was intended and therefore it should not be read in such a way as to imply that ‘any other harm’ should relate to the context of harm to the Green Belt only. In fact, the very presence of ‘any other harm’ was sufficiently and deliberately set part from ‘harm to the Green Belt’, so as to imply that it is indeed subject to harm in the non-Green Belt context. The decision to set aside the High Court Judges Order and allow the dismissal of the appeal provides important guidance in respect to how to appraise whether very special circumstances exist to justify development in the Green Belt. The Practical Implications The result has impacts beyond development at airports and effects all future decisions in the Green Belt. In practical terms, for any development in the Green Belt, the following should now be carefully considered: In weighing up whether very special circumstance exist, the determining authority can take account of all planning matters, whether they cause harm or benefit to the proposal. Therefore, applicants must consider all negative impacts of the proposed development and the effect that they may have on decisions in the context of the Green Belt, by virtue of being ‘any other harm’. By way of example, this might include minor increases in traffic movement, impacts to a heritage asset or increases in noise pollution. In weighing up whether very special circumstances exist, an authority can consider the cumulative effect of individual impacts. This is regardless of whether or not they are considered harmful to the Green Belt as individual considerations. The NPPF does not affect a fundamental shift in policy governing the Green Belt, at least not to make development easier. The presumption against inappropriate development in the Green Belt remains unaltered and is not diluted by the NPPF’s attempt to simplify and clarify planning policy through a single document.