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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brentwood Borough Council v Secretary of State for Communities & Local Government & Anor [2008] EWHC 1001 (Admin) (21 April 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1001.html Cite as: [2008] EWHC 1001 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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BRENTWOOD BOROUGH COUNCIL | Applicant | |
-v- | ||
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT | First Respondent | |
(2) MRS JULIA ANN MACDONALD | Second Respondent |
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The First Respondent did not appear and was not represented
The Second Respondent appeared on her own behalf, assisted by Bernadette Reilly as a McKenzie friend
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Crown Copyright ©
Background
"... that the decision was erroneous in law on the first ground stated therein because the Inspector adopted an unlawful approach to the assessment of 'very special circumstances' for the purposes of Green Belt policy in Planning Policy Guidance Note No. 2. In particular, she proceeded on the incorrect basis that merely because the harm by reason of inappropriateness, and any other harm, is outweighed by other considerations those factors can be characterised as very special circumstances."
That of course left Mrs MacDonald and the residents, as the second respondents in this appeal, having to decide what to do. The refused to agree to the consent order.
Adjournment
The Law
"... except in very special circumstances."
Paragraph 3.2 of the planning policy guidance goes on to provide that very special circumstances to justify inappropriate development will not exist:
"... unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
"National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF [Local Development Frameworks], to meet identified need."
"The circumstances must be not merely special in the sense of unusual or exceptional, but very special. The decision taker, whether it be the Secretary of State, one of his inspectors or a Local Planning Authority, has to be satisfied that the circumstances relied upon are indeed very special, but it does not follow that, merely because the decision taker considers that they outweigh the harm to the Green Belt, they are reasonably to be described as very special. The breadth of discretion that is conferred upon decision takers in other (non-Green Belt) cases is deliberately constrained by paragraph 3.1 of PPG2. The decision taker must be satisfied that there are very special circumstances. His judgment that there are such circumstances is subject to review on Wednesbury grounds. A factor is not a very special circumstance merely because the decision taker chooses to describe it in that way. The decision taker must be able to point to a circumstance or circumstances which, viewed objectively, are reasonably capable of being described as 'very special'."
The inspector's decision
"... I shall now consider any very special circumstances which should be weighed against the harm by way of inappropriateness and any other harm."
In other words, in this sentence she is indicating that in the following paragraphs she will identify the very special circumstances required in terms of the legal test to which I have referred.
"In my opinion, the educational needs of the children carry considerable weight in support of the appeal as their education would suffer if they were evicted from the site without any alternative settled base."
Again, one can well understand the appropriateness of that particular remark, but in terms of the legal requirement there is no identification of that as a very special circumstance.
"... I consider that access to medical services is a material consideration that should also be accorded considerable weight."
Again one can understand the force of that particular remark, but there is no identification of that as a very special circumstance.
"On balance, having regard to the recent Government advice in ODPM Circular 01/2006 on transitional arrangements, I consider that the other considerations when taken together weigh heavily in favour of the proposal, outweighing the harm and thus providing very special circumstances for planning permission to be granted."
Afterword