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The Supreme Court has today handed down judgment in an important case on mineral extraction in the Green Belt: R (Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3.
This case concerns the correct approach for a decision-maker considering “openness” in the National Planning Policy Framework (“the NPPF”) in the context of mineral extraction development. In particular, it resolves some uncertainty about the relationship between “openness” and “visual impact”.
Samuel Smith Old Brewery (Tadcaster) and Oxton Farm (the First and Second Respondents) challenged the grant of planning permission by North Yorkshire County Council (the Appellant) for an extension to the operational face of Jackdaw Crag Quarry, a magnesian limestone quarry owned and operated by the Third Respondent, Darrington Quarries Ltd. The approximately 25-hectare quarry is located in the Green Belt. The proposed extension was for an area of about six hectares, adjacent to the existing quarry.
The Council’s officer had advised that the proposed quarry extension was “not inappropriate” development in the Green Belt because it preserved the openness of the Green Belt and did not conflict with the purposes of including land in the Green Belt. It therefore complied with paragraph 90 of the NPPF (this provision is materially replicated in paragraph 146 of the extant NPPF).
Notwithstanding that the officer had considered the visual impact of the extension generally in her report, and that her analysis of Green Belt policy issues included explicit discussion of a restoration plan for the worked quarry area, Lindblom LJ in the Court of Appeal found at [49] that:
“[Her report] was defective, at least, in failing to make clear to the members that, under government planning policy for mineral extraction in the Green Belt in para 90 of the NPPF, visual impact was a potentially relevant and potentially significant factor in their approach to the effect of the development on the ‘openness of the Green Belt’…”
Lord Carnwath (with whom Lady Hale, Lord Hodge, Lord Kitchin and Lord Sales agreed) upheld the Council’s appeal and overturned the judgment of the Court of Appeal.
Referring to his previous judgment in Hopkins Homes Ltd v SSCLG [2017] UKSC 37; [2017] 1 WLR 1865, he found at [22]:
“The concept of “openness” in para 90 of the NPPF seems to me a good example of such a broad policy concept. It is naturally read as referring back to the underlying aim of Green Belt policy, stated at the beginning of this section: “to prevent urban sprawl by keeping land permanently open …”. Openness is the counterpart of urban sprawl and is also linked to the purposes to be served by the Green Belt. As PPG2 made clear, it is not necessarily a statement about the visual qualities of the land, though in some cases this may be an aspect of the planning judgement involved in applying this broad policy concept. Nor does it imply freedom from any form of development. Paragraph 90 shows that some forms of development, including mineral extraction, may in principle be appropriate, and compatible with the concept of openness. A large quarry may not be visually attractive while it lasts, but the minerals can only be extracted where they are found, and the impact is temporary and subject to restoration. Further, as a barrier to urban sprawl a quarry may be regarded in Green Belt policy terms as no less effective than a stretch of agricultural land.”
And at [25]:
“[Openness] is a matter not of legal principle but of planning judgement for the planning authority or the inspector”.
He therefore concluded at [39] that:
“With respect to Lindblom LJ’s great experience in this field, I am unable to accept his analysis. The issue which had to be addressed was whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including the land within the Green Belt. Those issues were specifically identified and addressed in the report. There was no error of law on the face of the report. Paragraph 90 does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law.”
As a matter of general application for all planning law cases, Lord Carnwath’s judgment is instructive in reinforcing the distinction between application and interpretation of planning policy. Much like Hopkins Homes, Lord Carnwath’s judgment appears to be designed to rein-in the prevailing tendency of “over-legalisation” [21] of the planning process.
North Yorkshire County Council was represented by Dan Kolinsky QC and Hannah Gibbs.
