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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government & Ors  EWHC 2476 (Admin) (18 July 2014)
Cite as:  EWHC 2476 (Admin),  WLR(D) 406
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| REDHILL AERODROME LIMITED
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) TANDRIDGE DISTRICT COUNCIL
(3) REIGATE AND BANSTEAD BOROUGH COUNCIL
Richard Kimblin (instructed by The Treasury Solicitor) for the 1st Defendant
Stephen Whale (instructed by Tandridge District Council and Reigate and Banstead Borough Council) for the 2nd and 3rd Defendants
Hearing date: 27th June 2014
Crown Copyright ©
Mrs Justice Patterson :
The decision letter
16. The main issues, derived from planning policy to protect the Green Belt, are:
- Whether the proposal constitutes inappropriate development, taking account of the effect of the proposed engineering operations on the openness of the Green Belt and the purposes of including land within the Green Belt, and
- If so, whether the potential harm to the Green Belt by reason of the inappropriateness, and any other harm, is clearly outweighed by other considerations in order that the very special circumstances, necessary to justify the proposal, exist.
17. The main possible sources of other harm that require to be considered are:
- The effects of the proposed hard runway and realigned taxiways, drainage improvements, runway and approach lighting on the appearance and landscape character of the Aerodrome and surrounding area.
- The effect of the proposal on the quality of life for local communities in the surrounding area and on the learning environment at Salfords Primary School, taking particular account of noise and disturbance.
- The effect of the proposal on highway capacity and safety.
- The effect of the location of the Aerodrome on the mode of travel to the proposed transport facility.
- The effect of the proposal on airspace safety.
18. The other considerations that may weigh in favour of the proposal concerns its effect on:
- The continuing existence, role and growth of the Aerodrome and the employment based there;
- Employment and the economy in the wider area;
- The use of existing infrastructure at the Aerodrome;
- The local environment having regard to ecological enhancements, the management of flooding and control on operations at the Aerodrome to improve amenity.
19. Submissions were made as to whether the Green Belt balancing exercise should follow the approach set out in the River Club judgment. Even though the judgment was made on the policy set out in Planning Policy Guidance 2, the wording in the Framework is very similar and I intend to follow the interpretation in the judgment. Furthermore, this approach is reflected in decisions by the Secretary of State since the publication of the Framework."
"26. The provision of a hard runway would be carried out as a single development and comprise a series of engineering operations. The associated earthworks, installation of lighting and drainage works would be integral to its provision. The hard paved area, by reason of the dimensions required, would be over a kilometre long and over twice the width of a taxiway. The runway would change the physical nature and character of land, replacing an existing grassed area. The hard runway would introduce a permanent engineered piece of infrastructure, which when in use would be illuminated by the new lighting system. The open, undeveloped appearance would be eroded. For similar reasons the operational development would not assist in safeguarding the countryside from encroachment. The nearest surrounding development is not in the form of large built-up areas or historic towns. In view of the principal change to the land, the siting of the proposed development would be sufficiently distant from the towns of Redhill and Horley to have no effect on their separation.
27. Therefore the proposal would not preserve the openness of the Green Belt and would conflict with a purpose of including land within it. In accordance with the Framework, the proposal is inappropriate development and by definition would be harmful to the Green Belt. The engineering operations are not within a category of development permitted by Policy Co 1. Under Policy RE2 the inappropriate development may be justified if very special circumstances exist. However, the wording of this policy is not consistent with the Framework and it has limited weight.
28. Evaluating the degree of harm, this part of the Aerodrome is currently relatively undeveloped and open compared to the area of hangars and buildings near King's Mill Lane, which is well lit. As a result, the loss of openness would be emphasised by the area covered by the hard runway itself, and to a much lesser degree the lighting installations and poles. The projected increase in aircraft movements to 85,000 facilitated by the proposal would increase the frequency of use of the runway and hence the activity and light pollution. The probability is that there would be more aircraft parked in the open and more parked cars. For similar reasons the encroachment into the countryside would be evident.
29. However, the proposal would not involve any new buildings and the physical changes would be primarily to the land surface. Unlike the Appellant, I do not single out the limited earthworks as affecting openness. This engineering work, and the resulting minor change in the topography, is a means to providing a runway to the required standard. The undulating nature of the land would be maintained. The resultant hard runway is the feature that harms openness. The effect of the new taxiways (390m in length) would be balanced by the restoration to grass of some existing taxiways (370m). The lighting poles would be small in number and lighting exists for the grass runways. The purpose of the lighting is to indicate the outline position of the runway, not to illuminate it and the intention is that lights would be kept at the lowest intensity possible. On this basis the lighting scheme is the minimum necessary for working purposes in accordance with Policy EV9 of the Tandridge District Local Plan. The drainage works when complete would have a negligible effect on openness. The habitat management area probably would have a neutral or slight effect, subject to any fencing details. In the context of the Aerodrome, the loss of openness would be limited and the encroachment contained.
30. In total, the harm to the Green Belt has substantial weight."
"36. Drawing all these considerations together, the proposal would adversely affect the appearance and character of the Aerodrome within its landscape setting. Landscape character would not be conserved, contrary to Policy CSP 21. Referring to the Framework, local distinctiveness would not be reinforced. I attach moderate weight to the harm."
"59. In conclusion, the position is not one where planning permission should be refused on grounds of noise alone, nevertheless, the proposal would erode the quality of life and detract from the learning environment by reason of noise disturbance. Policy objectives would not be fully met. I attach some weight to the effects of noise and disturbance on the local communities."
"76. The submission of a Transport Assessment confirms that the development is of a type that would be expected to generate a significant amount of movements. The development would not be located where there is the ability to minimise the need to travel and maximise the use of sustainable travel modes, even allowing for the solutions to vary between rural and urban areas. The site is not a sustainable location supported by the Framework. However, the residual cumulative impacts of the development would not be severe. The Framework does not advocate preventing the development in such circumstances.
77. There is no clear overall policy direction. The failure to satisfactorily resolve the capacity and mode of travel issues and the difficult local conditions along King's Mill Lane lead me to conclude that the associated harm provides some weight against the proposal."
"112. Taking account of the timescale and the area's employment characteristics, the proposal would bring economic benefits to the Aerodrome and the businesses based. The job security and growth in jobs would bring considerable benefit to individuals, widen opportunities and support the local economy. The Aerodrome would be able to develop its role in serving the business community and contribute to the economic initiatives in the surrounding area. In these respects the proposal complies with a core principle of the Framework, is consistent with objectives of the APF and the Tandridge Core Strategy. These considerations have significant weight.
113. Closure of the Aerodrome would result in a significant loss of jobs, a loss of a facility within the network of aerodromes and harm to the local economy. However, examination of the evidence indicates the risk may not be as real as the Appellant contends. The possibility adds limited weight in favour of the scheme."
"116. The proposal indirectly would lead to greater use of existing infrastructure but the development itself is new infrastructure to enable additional capacity to be created. Its acceptability is dependent on a range of factors linked to the achievement of sustainable development. I attach little weight to the best use of infrastructure argument."
"119. The principles of the scheme designs have been demonstrated to be acceptable. The details of the proposals are capable of being resolved through planning conditions. I conclude that the proposals on flood alleviation and habitat enhancement are to ensure compliance with policy requirements and the avoidance of harm. Therefore, they do not merit positive weight in the Green Belt balance."
"123. The harm to the Green Belt by reason of the inappropriate development, the loss of openness and the encroachment into the countryside has substantial weight. The harm to landscape character has moderate weight and the slight adverse visual impact a small amount of weight. The limited harm to the quality of life and learning environment through noise disturbance and the failure to satisfactorily resolve the capacity and mode of travel issues provide additional weight against the proposal. The overall weight against the proposal is very strong. This conclusion takes account of the mitigation afforded by the use of planning conditions and planning obligations.
124. On the positive side, safeguarding employment and the prospect of an additional 140 FTE jobs and a net GVA impact of £12.4m per annum by 2030 are realistic outcomes. The expansion of business aviation and support to business initiatives in the area would be beneficial. These contributions to the local economy have significant weight. The risk of Aerodrome closure, with all the associated effects, is a consideration that provides a limited amount of additional weight. The use of infrastructure and improvements to the local environment as a result of the development provide little weight to support the proposal
125. The other considerations, when taken together, do not clearly outweigh the potential harm to the Green Belt and the other identified harm. Very special circumstances to justify the development do not exist. The proposed hard runway development fails to comply with national policy to protect the Green Belt set out in the Framework. In addition there is conflict with Policy Co 1 and Policy RE2 of the development plan.
126. The environmental harm to an area that has a high degree of protection and is valued to the surrounding communities would significantly and demonstrably outweigh the economic benefits. The proposal would not deliver a sustainable development.
The Legal Framework
"18. In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority was required to proceed on the basis of what Lord Clyde described as "a proper interpretation" of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a "proper interpretation" of the plan of much of its meaning and purpose. It would also make little practical sense. The 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. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
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  1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
"19. Previous national policy in relation to Green Belt development defined material changes of use as inappropriate unless they maintained openness and did not conflict with the purposes of including land within the Green Belt – see PPG2, paragraph 3.12. That approach has not been carried through into the NPPF however, where the preferred approach is to attempt to define what is capable of being "not inappropriate" development within the Green Belt with all other development being regarded as inappropriate by necessary implication. It is for this reason that there is no definition within Chapter 9 of the NPPF of what constitutes inappropriate development, or any criteria by which whether a proposed development is or is not appropriate could be ascertained. It is for that reason that paragraph 89 of the NPPF provides that a particular form of development - the construction of new buildings - in the Green Belt is inappropriate unless one of the exceptions identified in the paragraph applies. Paragraph 90 defines the "other forms of development" there referred to as also at least potentially not inappropriate. The effect of paragraphs 87, 89 and 90, when read together, is that all development in the Green Belt is inappropriate unless it is either development (as that word is defined by s.55 of the TCPA) falling within one or more of the categories set out in paragraph 90 or is the construction of a new building or buildings that comes or potentially comes within one of the exceptions referred to in paragraph 89."
"It is relevant that the NPPF does not in all respects; mirror its predecessor guidance in relation to the Green Belt."
i) for biodiversity, the threshold for refusal is one of significant harm (paragraph 118)
ii) for noise, planning decisions should aim to avoid giving rise to significant adverse impacts (paragraph 123)
iii) for heritage considerations, the threshold for refusal is whether the development would lead to substantial harm (paragraph 133)
"… Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify the inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations…"
"26. Paragraph 3.2 of PPG2 is within the section of the PPG entitled "Control over development" and within that part, sub headed "Presumption against inappropriate development". In my judgement, para.3.2 is dealing with what is required to make inappropriate development acceptable in the Green Belt. That means considering the development as a whole to evaluate the harm that flows from it being inappropriate, together with any other harm that the development may cause, to enable a clear identification of harm against which the benefits of the development can be weighed so as to be able to conclude whether very special circumstances exist so as to warrant grant of planning permission.
27. It is of note that there are no qualifying words within para.3.2 in relation to the phrase "and any harm". Inappropriate development, by definition, causes harm to the purposes of the Green Belt and may cause harm to the objectives of the Green Belt also. "Any other harm" must therefore refer to some other harm than that which is caused through the development being inappropriate. It can refer to harm in the Green Belt context, therefore, but need not necessarily do so. Accordingly, I hold that "any other harm" in para.3.2 is to be given its plain and ordinary meaning and refers to harm which is identified and which is additional to harm caused through the development being inappropriate. It follows that I reject the argument that the phrase is constrained and applies to harm to the Green Belt only."
i) that the River Club case was wrongly decided; or
ii) alternatively, that the policy context now is so different that it requires a different approach.
"67. Thus applying the policy set out in paragraph 3.2 of PPG2, the proper question for the Inspector in the present case was whether the harm, by reason of inappropriateness, and the further (albeit limited) harm caused to the openness and purpose of the Green Belt were clearly outweighed by other considerations. Those other considerations were confined to "the benefit to the appellant's family, and particularly the children, of allowing the appeals". But it was only if those benefits not merely outweighed "the limited harm caused to the opens and purpose of the Green Belt", but if they clearly outweighed the harm by reason of inappropriateness and, the further, albeit limited, harm caused to the openness and purpose of the Green Belt, that very special circumstances could be found in terms of paragraph 3.2 of PPG2. It will be noted that in paragraph 19 of the North Benfleet decision the Secretary of State said in terms that very special circumstances did exist on the facts of that case."
"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"
The first defendant's submissions
"The environmental harm to an area which has high protection and is valued by the surrounding communities would significant and demonstrably outweigh the economic benefits."
was a finding which was independent of the claimant's complaint. It was fatal to the claimant's appeal. The inspector there considered environmental harm in its totality against the benefits of the proposal; it was a broader planning judgment. The cumulative effects of more limited harm were still to be taken into account.
Submissions of the second and third defendants
Discussion and conclusions
"– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate that development should be restricted."
Footnote 9 makes it clear that one of those policies relates to land within the Green Belt.
i) the development of the hard runway and associated structures was inappropriate development in the Green Belt, and that
ii) there was a conflict with the Green Belt purpose of safeguarding the countryside from encroachment.