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Test for Very Special Circumstances in the Green Belt?

The task of obtaining planning permission in the Green Belt has been eased by the Court of Appeal's decision on 23 June 2008 (the Master of the Rolls, sitting with Carnwath and Wilson LJJ) allowing an appeal by Mr and Mrs Butler in Wychavon DC v Secretary of State for CLG and Butler [2008] EWCA 692, concerning the proper interpretation of para 3.2 of PPG2. The Court held that the judge below (and also Sullivan J in R (Chelmsford BC) v First Secretary of State [2004] 2 P&CR 677) had been wrong to apply a two-stage test, requiring both that there must be circumstances which can reasonably be described as very special and that the various types of harm had been clearly outweighed by other considerations. There was no such "rigid division" between the two parts of the question posed by para 3.2 (para 25 per Carnwath LJ); and the word "special" in the guidance connoted "not a quantitative test, but a qualitative judgment as to the weight to be given to the particular factor for planning purposes" (para 21 per Carnwath LJ).

Additionally the judge below had been wrong to quash as perverse the Inspector's decision that there were very special circumstances in the instant case.

The Court of Appeal stressed the need for "reticence" in considering the decisions of inspectors on issues of planning judgment (para 43 per Carnwath LJ).

This was a notably robust decision by the Court of Appeal, given that the Secretary of State had herself consented to judgment and did not oppose the appeal on the principal issue; and that Keene LJ had refused leave to appeal on the ground that the two-stage test in the Chelmsford case was plainly correct.

Charles George QC (with Stephen Cottle) appeared for the Butlers, instructed by the Community Law Partnership.