The 2012 NPPF: A Digest of Decisions

Section 9 – Protecting Green Belt land

NPPF 79-92

Timmins v Gedling DC [2014] EWHC 654 (Admin), Green J
Paul Brown KC appeared for the first Claimant

The Council found that the proposed development (cemetery) was appropriate development in the Green Belt, since it would preserve openness and would not conflict with the purposes of including land in the Green Belt.

“In my judgment, properly interpreted, section 9 NPPF means that any development in the Green Belt is treated as prima facie “inappropriate” and can only be justified by reference to “very special circumstances” save in the defined circumstances set out in paragraphs 89 and 90.” [25]

R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404, Treacy, Underhill, Lindblom LJJ

“The true position surely is this. Development that is not, in principle, “inappropriate” in the Green Belt is, as Dove J. said in paragraph 62 of his judgment, development “appropriate to the Green Belt”. On a sensible contextual reading of the policies in paragraphs 79 to 92 of the NPPF, development appropriate in – and to – the Green Belt is regarded by the Government as not inimical to the “fundamental aim” of Green Belt policy “to prevent urban sprawl by keeping land permanently open”, or to “the essential characteristics of Green Belts”, namely “their openness and their permanence” (paragraph 79 of the NPPF), or to the “five purposes” served by the Green Belt (paragraph 80). This is the real significance of a development being appropriate in the Green Belt, and the reason why it does not have to be justified by “very special circumstances”.” [24]

NPPF 79

R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404, Treacy, Underhill, Lindblom LJJ

“The concept of “openness” here means the state of being free from built development, the absence of buildings – as distinct from the absence of visual impact” [7]

NPPF 80

Smith [2017] EWHC 2562 (Admin), Sir Ross Cranston
Richard Turney appeared for the Claimant
Zack Simons appeared for the Secretary of State

“No authority was cited for the proposition that “urban sprawl” mentioned in para.80 of the NPPF is confined to urban sprawl through building.” [33]

NPPF 81

Fordent Holdings v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin), HHJ Pelling KC

Change of use can fall within NPPF 81, but this does not mean by definition that a change of use falling within NPPF 81 is necessarily not inappropriate development for the purposes of NPPF 90. [23]

NPPF 83

Gallagher Homes Ltd v Solihull Borough Council [2014] EWHC 1283 (Admin), Hickinbottom J
Christopher Lockhart-Mummery KC and Zack Simons appeared for the Claimant

Preparing a new local plan is not, of itself, an exceptional circumstance justifying alteration to a green belt boundary. [125]

“124. There is a considerable amount of case law on the meaning of “exceptional circumstances” in this context. I was particularly referred to Carpets of Worth Limited v Wyre Forest District Council (1991) 62 P & CR 334 (“Carpets of Worth”), Laing Homes Limited v Avon County Council (1993) 67 P & CR 34 (“Laing Homes”), COPAS v Royal Borough of Windsor and Maidenhead [2001] EWCA Civ 180; [2002] P & CR 16 (“COPAS”), and R (Hague) v Warwick District Council [2008] EWHC 3252 (Admin) (“Hague”).

125. From these authorities, a number of propositions are clear and uncontroversial.

i) Planning guidance is a material consideration for planning plan-making and decision-taking. However, it does not have statutory force: the only statutory obligation is to have regard to relevant policies.

ii) The test for redefining a Green Belt boundary has not been changed by the NPPF (nor did Mr Dove suggest otherwise).

a) In Hunston, Sir David Keene said (at [6]) that the NPPF “seems to envisage some review in detail of Green Belt boundaries through the new Local Plan process, but states that ‘the general extent of Green Belts across the country is already established'”. That appears to be a reference to paragraphs 83 and 84 of the NPPF. Paragraph 83 is quoted above (paragraph 109). Paragraph 84 provides:

“When drawing up or reviewing Green Belt boundaries local planning authorities should take account of the need to promote sustainable patterns of development?”.

However, it is not arguable that the mere process of preparing a new local plan could itself be regarded as an exceptional circumstance justifying an alteration to a Green Belt boundary. National guidance has always dealt with revisions of the Green Belt in the context of reviews of local plans (e.g. paragraph 2.7 of PPG2: paragraph 83 above), and has always required “exceptional circumstances” to justify a revision. The NPPF makes no change to this.

b) For redefinition of a Green Belt, paragraph 2.7 of PPG2 required exceptional circumstances which “necessitated” a revision of the existing boundary. However, this is a single composite test; because, for these purposes, circumstances are not exceptional unless they do necessitate a revision of the boundary (COPAS at [23] per Simon Brown LJ). Therefore, although the words requiring necessity for a boundary revision have been omitted from paragraph 83 of the NPPF, the test remains the same. Mr Dove expressly accepted that interpretation. He was right to do so.

iii) Exceptional circumstances are required for any revision of the boundary, whether the proposal is to extend or diminish the Green Belt. That is the ratio of Carpets of Worth.

iv) Whilst each case is fact-sensitive and the question of whether circumstances are exceptional for these purposes requires an exercise of planning judgment, what is capable of amounting to exceptional circumstances is a matter of law, and a plan-maker may err in law if he fails to adopt a lawful approach to exceptional circumstances. Once a Green Belt has been established and approved, it requires more than general planning concepts to justify an alteration.” [124]-[125]

Gallagher Homes Ltd v Solihull DC [2014] EWCA Civ 1610, Laws, Patten and Lloyd LJJ
Christopher Lockhart-Mummery KC and Zack Simons appeared for the Claimant
Christopher Katkowski KC appeared for the Council

“The fact that a particular site within a council’s area happens not to be suitable for housing development cannot be said without more to constitute an exceptional circumstance, justifying an alteration of the Green Belt by the allocation to it of the site in question.” [36]

IM Properties Development Ltd v Lichfield DC [2014] EWHC 2440 (Admin), Patterson J

“What is clear from the principles distilled in the case of Gallagher is that for revisions to the green belt to be made exceptional circumstances have to be demonstrated. Whether they have been is a matter of planning judgment in a local plan exercise ultimately for the inspector. It is of note that in setting out the principles in Gallagher there is no reference to a falsification doctrine [that the basis on which land was excluded from the Green Belt has been falsified] or that any release of green belt land has to be seen as a last resort.” [96]

Calverton Parish Council v Nottingham City Council, Broxtowe Borough Council and Gedling Borough Council [2015] EWHC 1078 (Admin), Jay J
Richard Turney appeared for the Claimant

“Mr Turney … submitted that the fact that a particular site happens to be suitable for housing development cannot, without more, constitute an exceptional circumstance justifying an alteration of the Green Belt. I agree with Mr Turney insofar as this goes… Suitability simpliciter cannot logically be envisaged as an exceptional circumstance…; suitability and availability may do, subject to the refinements discussed below.

Compton Parish Council v Guildford Borough Council [2019] EWHC 3242 (Admin), Sir Duncan Ouseley
James Maurici KC and Heather Sargent appeared for the First Interested Party
Richard Turney appeared for the Second Interested Party
Andrew Parkinson appeared for the Third Interested Party

“70. “Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.” That difference is clear enough from the language itself and the different contexts in which they appear, but if authority were necessary, it can be found in R(Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at [56], Sales LJ. As Patterson J pointed out in IM Properties Development Ltd v Lichfield DC [2014] EWHC 2240 at [90-91 and 95-96], there is no requirement that Green Belt land be released as a last resort, nor was it necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events.

71. There is however a danger of the simple question of whether there are “exceptional circumstances” being judicially over-analysed. This phrase does not require at least more than one individual “exceptional circumstance”. The “exceptional circumstances” can be found in the accumulation or combination of circumstances, of varying natures, which entitle the decision-maker, in the rational exercise of a planning judgment, to say that the circumstances are sufficiently exceptional to warrant altering the Green Belt boundary.

72. General planning needs, such as ordinary housing, are not precluded from its scope; indeed, meeting such needs is often part of the judgment that “exceptional circumstances” exist; the phrase is not limited to some unusual form of housing, nor to a particular intensity of need. I accept that it is clearly implicit in the stage 2 process that restraint may mean that the OAN is not met. But that is not the same as saying that the unmet need is irrelevant to the existence of “exceptional circumstances”, or that it cannot weigh heavily or decisively; it is simply not necessarily sufficient of itself. These factors do not exist in a vacuum or by themselves: there will almost inevitably be an analysis of the nature and degree of the need, allied to consideration of why the need cannot be met in locations which are sequentially preferable for such developments, an analysis of the impact on the functioning of the Green Belt and its purpose, and what other advantages the proposed locations, released from the Green Belt, might bring, for example, in terms of a sound spatial distribution strategy. The analysis in Calverton PC of how the issue should be approached was described by Jay J as perhaps a counsel of perfection; but it is not exhaustive or a checklist. The points may not all matter in any particular case, and others may be important especially the overall distribution of development, and the scope for other uses to be provided for along with sustainable infrastructure.
…

…once meeting the OAN is accepted as a strategic level factor contributing to “exceptional circumstances”, as it has to be for the purpose of this Issue in the light of my conclusions on Issue 1, it follows that the provision of headroom against slippage and for flexibility to meet changes, “future-proofing” the Plan, as the Inspector put it, would also contribute to such circumstances.”

Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 1461 (Admin), Lieven J
Jenny Wigley KC appeared for the Claimant
Matthew Fraser appeared as Junior Counsel for the Second Interested Party

“103. The Inspectors had to take the up to date position in respect of all material considerations and that must include the actual level of housing requirement if the policy had become out of date.”

“127. In circumstances where national policy requires exceptional circumstances to be shown to justify any GB release it would, in my view be irrational to say that a fall of 25% requirement with these potential GB consequences would not be a fundamental change.”

Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin), Holgate J
Paul Brown KC and Guy Williams appeared for the First Defendant
John Litton KC appeared for the First Interested Party

Holgate J could “see no reason to disagree” with the principle “There is no requirement that green belt land may only be released as a last resort” [147].

“the mere identification of housing need, or unmet housing need, cannot be assumed by itself to constitute an exceptional circumstance to justify an alteration in the boundary of the greenbelt. But it does not follow that it is incapable of amounting to an exceptional circumstance. Whether it does so it a matter of judgment for the decision-maker, which depends in part on how much significance or weight the decision-maker attaches to that identified need” [151]

“Much caution and judicial restraint is generally called for when dealing with a contention that a particular factor was legally incapable of amounting to an “exceptional circumstance”, a deliberately broad phrase which depends essentially upon the application of planning judgment.” [152]

“153. It should also be emphasised that what may be judged by a decision-maker to amount to exceptional circumstances” is highly fact sensitive in each individual case. It will be sensitive to a range of case-specific considerations and the varying weight given to each, including the circumstances of a particular area, the policy context, the evidence base and the arguments advanced in the consultation and examination stages. That is why Sir Duncan Ouseley was, with respect, entirely correct [in Compton] to place much greater emphasis upon the court’s role of determining whether a decision-maker’s judgment was irrational, and not on attempting to define “exceptionality”. Of course, claimants face a high hurdle when seeking to advance irrationality in relation to the making of a planning judgment”.

On paras 51-52 of Calverton Parish Council, Holgate J noted that Jay J described what he had set out as “an ideal approach”, “a counsel of perfection”. “The judge did not lay down any standard or rule requiring that approach to be followed in order for a review of green belt boundaries to be lawful. He stated that a more discursive, or open-textured approach by a Planning Inspector, as taken in that case, would suffice.” [155]

NPPF 83-84

Calverton Parish Council v Nottingham City Council, Broxtowe Borough Council and Gedling Borough Council [2015] EWHC 1078 (Admin), Jay J
Richard Turney appeared for the Claimant

“The second sentence of paragraph 84 is not altogether clear. On the face of things, it might well be argued that it appears to reinforce the need to protect the Green Belt, but in my view it is capable of being interpreted slightly more broadly. The consequences for sustainable development may require revision of the Green Belt. Nonetheless, I do not readily agree with Miss Ellis that paragraph 84 throws any light on the meaning of “exceptional circumstances” within paragraph 83, or should be taken as somehow diluting this aspect. Sustainable development embraces environmental factors, and such factors are likely to be negatively in play where release of Green Belt is being considered. The second sentence of paragraph 83 supplies a fetter or brake on development which would, were it not for the Green Belt, otherwise be sustainable; but in deciding whether exceptional circumstances pertain regard must be had to the whole picture, including as I have said the consequences.” [19]

NPPF 84

IM Properties Development Ltd v Lichfield DC [2014] EWHC 2440 (Admin), Patterson J

Paragraph 84 “is clear advice to decision makers to take into account the consequences for sustainable development of any review of green belt boundaries. As part of that patterns of development and additional travel are clearly relevant.” [98]

NPPF 87-89

Hook [2020] EWCA Civ 486, Lindblom, Peter Jackson and Asplin LJJ

“From the relevant cases, some basic points emerge:

(1) The concepts referred to in NPPF policy for the Green Belt – “inappropriate development”, “very special circumstances”, the preservation of the “openness” of the Green Belt, the impact of development on “the purposes of including land within it”, and so on – are not concepts of law. They are broad concepts of planning policy, used in a wide range of circumstances (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13; [2012] 2 P. & C.R. 9 , at paragraph 19). Where a question of policy interpretation properly arises, understanding those concepts requires a sensible reading of the policy in its context, without treating it as if it were a provision of statute. Applying the policy calls for realism and common sense.

(2) In dealing with the “threshold” question of whether a proposal is for “inappropriate development” in the Green Belt, and then in deciding whether the proposal is acceptable and ought to be given planning permission, the decision-maker must establish relevant facts and exercise relevant planning judgment. If called upon to review the decision, the court will not be drawn beyond its limited role in a public law challenge (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780G-H). The interpretation of planning policy falls ultimately within that role, but the decision-maker’s application of policy will only be reviewed on traditional public law grounds (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 and 19). As this court has emphasized more than once, excessive legalism must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 893, [2018] P.T.S.R. 88, at paragraph 50). The court will not second-guess the decision-maker’s findings of fact unless some obvious mistake has occurred, nor interfere with the decision-maker’s reasonable exercise of planning judgment. But if an error of law is demonstrated – such as a misinterpretation of relevant policy leading to a failure to exercise a planning judgment required by that policy – its duty is to act.

(3) The nature of the decision-maker’s task will differ from one kind of development to another. For example, whether a proposal is for “buildings for agriculture and forestry” – the first category of “new buildings” that are not to be regarded as “inappropriate development” under the policy in paragraph 89 of the NPPF – will be largely if not wholly a matter of fact. There is no proviso in that category (see Lee Valley, at paragraph 19). By contrast,assessing whether a proposed “[facility] for outdoor sport” – the second category in paragraph 89 – would “preserve the openness of the Green Belt” is largely a matter of planning judgment. The same applies to proposals for “mineral extraction” or “engineering operations” – two categories of “other forms of development” that are potentially “not inappropriate” under the policy in paragraph 90, which are subject to the same proviso. The requisite planning judgment will turn on the particular facts. It is not predetermined by the general statement in paragraph 79 that one of the “essential characteristics” of Green Belts is their “openness” – meaning, in that context, the mere presence of buildings, regardless of any visual impact they might have (see Lee Valley , at paragraph 7). In the context of a development control decision, as Sales L.J. observed in Turner (at paragraph 14),”[the] word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case”, and (at paragraph 15) “[the] question of visual impact is implicitly part of the concept of [the] “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF”.

R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council [2020] EWCA Civ 861, Rafferty, Lindblom and Newey LJJ

“33. To enlarge on the basic points recently identified by this court in Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486 (at paragraph 7):

1) The imperative of preserving the “openness” of the Green Belt – a basic component of government policy for the Green Belt in the NPPF, as in previous statements of national policy – is not a concept of law; it is a broad concept of policy (see Hook, at paragraph 7(1)). As with other formulations of planning policy, its meaning is to be derived from the words the policy-maker has used, read sensibly in their “proper context”, and not as if they were the provisions of a statute or contract (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] 2 P. & C.R. 9, at paragraphs 18 and 19).

2) Applying the policy imperative of preserving the “openness” of the Green Belt requires realism and common sense. As was emphasised both by this court in Samuel Smith (at paragraphs 33, 38 to 40 and 50), and by the Supreme Court (at paragraphs 22 and 25), it involves the exercise of planning judgment by the decision-maker. When it considers whether the decision-maker has exercised a lawful planning judgment in applying a planning policy, the court will not be taken beyond its limited role in a public law challenge (see the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1458G to p.1459D). As this court has often said, an unduly legalistic approach must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2018] P.T.S.R. 88, at paragraph 50; and Hook, at paragraph 7(2)). But if an error of law is shown – such as a misinterpretation of policy leading to a failure to exercise a planning judgment that the policy requires – the court will intervene.

3) The courts’ reasoning in Lee Valley, Turner and Samuel Smith dispels the fallacy that the visual effects of a development cannot be relevant to the question of whether it will preserve the “openness” of the Green Belt. In both Turner (at paragraphs 13 to 18 and 26) and Samuel Smith (at paragraphs 19 to 22) the Court of Appeal accepted that, in principle, such effects can be relevant to this question, as a matter of planning judgment. And this was accepted by the Supreme Court in Samuel Smith (see paragraphs 22, 25 and 40).

4) Those three cases demonstrate the importance of context to a true understanding of the policy being considered. Context governs the policy’s meaning. Thus, for example, the aim of preserving the “openness” of the Green Belt was not limited by the proposition in paragraph 79 of the NPPF that one of the “essential characteristics” of Green Belts is their “openness” – a concept whose meaning, in that context, goes to the mere physical presence, or otherwise, of buildings, regardless of any visual impact they might have (see Lee Valley, at paragraph 7; and Hook, at paragraph 7(3)). As this court said in Lee Valley (at paragraph 7), specifically in the context of paragraph 79, “[the] concept of “openness” here means the state of being free from built development, the absence of buildings – as distinct from the absence of visual impact”. But this does not mean that, in the context of the development control policies in paragraphs 87 to 90, harm to “openness” cannot be caused by forms of development other than buildings – such as those referred to in paragraph 90, which contains a proviso that they “preserve the openness of the Green Belt”; or cannot be caused by a development’s visual impact on “openness”. If it were otherwise, those policies would not make sense.

5) There was no indication in paragraphs 87 to 90 of the NPPF that the aim of preserving the openness of the Green Belt excludes consideration of visual as well as physical or spatial impact. On the contrary, as Sales L.J. said in Turner, “[the] word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case” (paragraph 14); “[the] question of visual impact is implicitly part of the concept of [the] “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF” (paragraph 15); and “it does not follow from the fact that there may be other harms with a visual dimension apart from harm to the openness of the Green Belt that the concept of openness of the Green Belt has no visual dimension itself” (paragraph 16). The correctness of those observations was not doubted by the Supreme Court in Samuel Smith.

NPPF 87

Hunston Properties Ltd [2013] EWCA Civ 1610; [2014] JPL 599, Kay and Ryder LJJ, Sir David Keane
Matthew Reed appeared for the Council

On the facts, the Inspector was obliged to find a housing shortfall. However, the weight to be given to such a housing shortfall (and whether it constituted ‘very special circumstances’ for the purposes of NPPF 87) was a matter of planning judgment. The weight to be attached to the shortfall may, as a matter of planning judgment, be reduced where a shortfall is inevitable due to a district being subject to policies which restrict development (such as AONBs, National Parks or Green Belts).

Fordent Holdings v Secretary of State for the Home Department [2013] EWHC 2844 (Admin), HHJ Pelling KC

The meaning of ‘development’ in the NPPF is the same as in s.55 of the TCPA 1990. A material change of use can be inappropriate development for the purposes of NPPF 87: [18].

R (Khan) v LB Sutton [2014] EWHC 3663 (Admin), Patterson J

[After quoting from Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692]

“The guidance in the NPPF is unchanged in relation to very special circumstances. As such, whether a factor constitutes a very special circumstance is a matter for the decision maker in the exercise of his judgment in any particular case.” [80]

R (Luton Borough Council) v Central Bedfordshire Council [2015] EWCA Civ 537 (Longmore, Tomlinson, Sales LJJ)

“…paras. 87-88 of the NPPF provide guidance regarding the approach to be adopted if there is a proposal for development of an area within the Green Belt set out in a local plan: “very special circumstances” have to be shown. This is a stricter test than that in para. 83 in respect of changing the boundaries of the Green Belt in the local plan.” [54]

NPPF 88

Redhill Aerodrome Ltd [2014] EWCA Civ 1386, Sullivan, Tomlinson, Lewison LJJ
James Maurici KC appeared for the First Appellant Secretary of State
Stephen Whale appeared on behalf of the Second and Third Appellant Councils
Christopher Katkowski KC and Alistair Mills appeared on behalf of the Respondent, Redhill Aerodrome

The phrase “and any other harm” means any harm, not only harm the Green Belt.

Copas v Secretary of State for Communities and Local Government [2014] EWHC 2634 (Admin), Supperstone J
Matthew Reed appeared on behalf of the Claimants

NPPF 88 deals with the issue of weight to be attached to factors [32].

R (Luton BC) v Central Bedfordshire Council [2014] EWHC 4325 (Admin), Holgate J

“The NPPF does not require the planning authority to chop up a mixed use proposal into separate components and to apply the very special circumstances test separately in relation to each such component. No authority was cited to support that interpretation and I do not think that it is justifiable on the language used in paragraph 88 of the NPPF.” [167]

Dear v Secretary of State for Communities and Local Government [2015] EWHC 29 (Admin), HHJ Belcher
Stephen Whale appeared for the Secretary of State

The case concerned the weight to be given to harm to the Green Belt, in circumstances where the best interests of children must also be a primary consideration,

“In my judgement, provided the decision-maker ascribes the correct weight at the outset, in carrying out any adjustment to the weighting when considering the individual circumstances of the case, it matters not whether he reduces the weight on one side of the balance, or increases the weight on the other. The effect will be the same.” [47]

R (Lee Valley Regional Park Authority) v Broxbourne Borough Council[2015] EWHC 185 (Admin), Ouseley J

“A shortfall in housing land supply can, as a matter of policy, be a very special circumstance, although the occasions when it is likely to suffice by itself to warrant the grant of permission for housing development in the Green Belt are expected to be few and far between. That is in effect what the NPPF and the Ministerial statement say. So there is nothing unlawful in the committee treating it as one of a number of very special circumstances. I do not accept Mr Harwood’s submission that the committee considered it as another material consideration rather than as a very special circumstance. But, if so, it does not help the claimant. Once the issue is whether or not inappropriate development should be permitted in the Green Belt, all factors which tell in favour of the grant go to making up very special circumstances, which may or may not suffice. It is not necessary to go through the process of considering whether a factor is not a very special circumstance but nonetheless falls to be taken into account in favour of the development as another relevant material consideration. See Secretary of State for Communities and Local Government v Redhill Aerodrome Ltd [2014] EWCA Civ 1386.” [68]

Atkins v Tandridge City Council [2015] EWHC 1947 (Admin), Dove J

Adopted the need for Green Belt harm and other harm to be clearly outweighed, in Doncaster MBC v Secretary of State [2002] EWHC 808 (Admin), para 70:

“Given that inappropriate development is by definition harmful, the proper approach is whether the harm by reason of inappropriateness and the further harm, albeit limited, cause to the openness and purpose of the Green Belt, was clearly outweighed by the benefit to the appellant’s family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.”

R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404, Treacy, Underhill, Lindblom LJJ

“The first sentence of paragraph 88 of the NPPF must not be read in isolation from the policies that sit alongside it. The correct interpretation of it, I believe, is that a decision-maker dealing with an application for planning permission for development in the Green Belt must give “substantial weight” to “any harm to the Green Belt” properly regarded as such when the policies in paragraphs 79 to 92 are read as a whole (consistent with the approach taken, for example, in the judgment of Sullivan L.J., with whom Tomlinson and Lewison L.JJ. agreed, in Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government [2015] P.T.S.R. 274 , at paragraph 18). Reading these policies together, I think it is quite clear that “buildings for agriculture and forestry”, and other development that is not “inappropriate” in the Green Belt, are not to be regarded as harmful either to the openness of the Green Belt or to the purposes of including land in the Green Belt. This understanding of the policy in the first sentence of paragraph 88 does not require one to read into it any additional words.” [17]

NPPF 89

R (Lee Valley Regional Park Authority) v Broxbourne Borough Council[2015] EWHC 185 (Admin), Ouseley J

“The words “agricultural building” in the NPPF, as in the legislation, in my view mean a building used for the purposes of agriculture alone and do not include one which was used for the purposes of agriculture alone and do not include one which was used for agricultural purposes but which, lawfully, is now used for another purpose, mixed with agriculture or not. These buildings were in fact no longer used for agricultural purposes alone. A barn now converted to a dwelling was once used for agricultural purposes, it was an agricultural building, but it is now a dwelling house and not an agricultural building.

The second aspect of this issue is whether nonetheless, as Mr Jones contended, the previous agricultural use of the buildings meant that the land was still excluded from “previously developed land” as it remains land which “is or has been occupied by agricultural buildings”. The language of the exclusion was quite straightforward. Mr Harwood contended that the exclusion could not apply where the agricultural use of the buildings had ceased and had been replaced by another use, whether a permitted use, or one which had become a lawful use. The position would be even more obvious if the buildings had been demolished and lawfully replaced with other buildings for use for non-agricultural purposes, but which logically on Mr Jones’ submission would still mean that the land “has been occupied” by agricultural buildings.

In my judgment, those words must be read in the context of the words defining previously developed land. That is land which “is or was occupied by a permanent structure”. The exception uses the words “is or has been occupied by agricultural buildings”. The policy first looks at the present position and asks what buildings occupy the site, to which the answer is: buildings lawfully not used for agricultural purposes. The present tense deals with the position as it is. The policy then looks at whether the land “was” or “has been” occupied by permanent structures or certain buildings. The past tense deals with the position where the buildings which once occupied the land no longer do so, having been demolished, or fallen down. Their removal does not in general prevent land being previously developed land, and in the case of agricultural buildings, their removal does not end the exception. The past tense is not used to deal with former agricultural buildings which continue occupy the land but which are no longer agricultural buildings. That is covered by what “agricultural building” means.

The problem with Mr Jones’ approach is three fold, although I can see that his interpretation is a possible one. First, it does not seem to me the most natural reading of the language of the policy. The policy would have to cover the position where buildings still occupy on the site, and where they once occupied the site but have since been demolished or have fallen down. That is what the two tenses deal with. The use of the past tense to cover both sites no longer occupied by any buildings, and sites still occupied by buildings but which have changed from a use within the exception to one outside it, rather strains the scope of quite simple language. Second, the policy justification for his suggested interpretation is not strong enough to overcome that reading. The aim of the agricultural building exception is to avoid a necessary exception to normal policies, agricultural buildings in the countryside and the Green Belt, often permitted development not requiring specific planning permission, becoming the vehicle, through this new policy, for allowing built development which would otherwise be inappropriate in the Green Belt, or not normally allowed in the countryside. Were the lawful change of use of an agricultural building to become the vehicle for a new non-agricultural building, the aim of the policy could be to some degree undermined though it would still cover the erection of new non-agricultural buildings. I do not think that that makes a sufficient dent in the rationale for the policy to overcome the simple reading of straightforward language. Third, it would introduce some very odd consequences which I cannot accept are intended. If agricultural buildings had once occupied a site, whether they had changed their use long ago, or had been demolished and replaced with non-agricultural buildings with permission, the site could not be previously developed land. If the whole of the southern site is redeveloped for housing, it would still be within the exception to previously developed land when any further redevelopment took place. Accordingly, I conclude that the southern part of the site was correctly treated as previously developed land.” [38]-[41]

Gill [2015] EWHC 2660 (Admin), Rhodri Price Lewis KC
Stephen Whale appeared for the Secretary of State

“The description of development was amended to refer to the retention of the building and its change of use to offices but it still did not involve the construction of a new building applying the ordinary and natural meaning of those words.” [31]

R (Robb) v South Cambridgeshire District Council [2017] EWHC 594 (Admin), Ouseley J
Andrew Parkinson appeared for the Claimant

“Where the NPPF refers to exceptionally treating as appropriate limited affordable housing for local community needs “under policies set out in the Local Plan”, it plainly intends that the relevant policy, here HG/5, should be properly complied with; that is, complied with according to its terms. Its terms require compliance in full with the criteria.” [24]

R (Tate) v Northumberland County Council [2017] EWHC 664 (Admin), HHJ Belcher

This case concerned whether a settlement was a village for the purpose of the penultimate bullet point of NPPF 89.

“Whilst accepting that there is no one definition of a village, Miss Graham Paul submitted that in interpreting Green Belt policy, and giving the word ‘village’ its ordinary reasonable meaning, for a settlement to be considered a village it must have at least one of the following: a clear core, boundaries, an evolution of different housing types and styles, basic services, highway frontage, or a population of between hundreds and thousands. Her skeleton characterise this submission as “must have” at least one of those criteria. In her oral submissions, she accepted the position was more nuanced. She accepted that no one factor was determinative, but she submitted that a village should have at least one of those criteria.” [19]

“In my judgment, that discussion and Miss Graham Paul’s responses, served to emphasise that the question of whether a given settlement is, or is not, a village, is inevitably a matter of planning judgement. The fact that different members of the public, or indeed a different planning authority might take a different view of the matter does not undermine the planning judgment unless it can properly be said to be irrational, that is a decision that no reasonable planning authority could have reached, or in the words of Sedley J (as he then was) in R v Parliamentary Commissioner for Administration, ex-parte Morris and Balchin [1997] JPL 917 at 927 “…… a decision which does not add up – in which, in other words, there is an error in reasoning which robs the decision of logic.”” [25]

“In my judgment I cannot possibly conclude that a village must have at least one of the items on Miss Graham Paul’s list, or that in the absence of at least one of the criteria in her list, a decision that a particular settlement amounts to a village is, therefore, irrational. There is no proper basis upon which I could conclude that any of the criteria is required. It would amount to my own subjective view and, in effect, a review of the decision itself (which is not the function of judicial review) rather than a review of the decision making process (which is the function of judicial review). In my view Miss Graham Paul’s list is inevitably subjective, and the subjective decisions to be made on the facts of this case are properly to be made collectively by those exercising planning judgement.” [27]

R (Robb) v South Cambridgeshire District Council [2017] EWHC 594 (Admin), Ouseley J
Andrew Parkinson appeared for the Claimant

R (Tate) v Northumberland County Council [2017] EWHC 664 (Admin), HHJ Belcher

This case concerned whether a settlement was a village for the purpose of the penultimate bullet point of NPPF 89.

Hook [2020] EWCA Civ 486, Lindblom, Peter Jackson and Asplin LJJ

“41. The central question here, however, though similar to that in Binabik Holding Ltd., is not the same as in either of those cases. It is whether, on the evidence before him, the inspector was entitled lawfully to find, essentially as a matter of fact and degree, that the development for which planning permission was being retrospectively sought by Ms Hook under section 73A was not a “[building] for agriculture” within the relevant category of exception under the policy in paragraph 89 of the NPPF – which led to the conclusion that it was, therefore, “inappropriate development” in the Green Belt. If the crucial findings of fact generating that conclusion were lawfully made, the inspector was not, in my view, required to consider the imposition of a condition to control the occupancy of the building on the assumption, contrary to those findings, that it was, or would in the future become, a “[building] for agriculture”. On his findings of fact, that was not the proposal he was dealing with. The suggested agricultural occupancy condition related to a different development, which – as he found on the evidence before him – did not exist, and was not going to exist. It depended on the building being a “[building] for agriculture”, in the sense of the policy in paragraph 89 of the NPPF. But the building he was considering, as he found, was not a “[building] for agriculture”. The suggested condition did not, therefore, relate to the actual development on the ground, which was the subject of the application for planning permission. Nor could it have the effect of changing that development from what it actually was to something it was not.
…

44. As Ms Hook’s intended use of the land was already in existence, and the building for which retrospective planning permission had been sought was already in place, the inspector was able to see for himself what the proposed development involved. And his relevant findings of fact are, in my opinion, beyond criticism. The main findings, that “… due to the small scale of the horticultural operation at the site and the keeping of just two horses for recreational purposes, … the dwelling is the primary development at this site and it is not ancillary to the use of the land” and that “[consequently], the dwelling is not a building for agriculture” (paragraph 12 of the decision letter), are legally sound. They are supported by the more specific findings: that the “scale” of Ms Hook’s landscape gardening business was “comparable to that which a keen amateur gardener could have at their home”, that “only a minimal proportion of her income [was] derived from plant sales”, that whilst “this may increase, as suggested in the projected figures, it would remain … a minor part of her business” (paragraph 10), and that the activity involved in keeping two horse stabled at the site, which “she rides for recreation”, amounted to a use that was “fairly small” (paragraph 11). It is also clear that the inspector had well in mind Ms Hook’s intentions for the future. He referred to the evidence on her projections for the landscape gardening business in “the coming years”, in the light of which he still “[did] not consider that there [was] an essential need for [her] to reside permanently on the site to manage this part of the operation” (paragraphs 21 and 22). And he found that her ability to perform the tasks she would continue to undertake in managing the paddocks and caring for her two horses was not “dependent on her residing permanently at the site …” (paragraph 23).

45. The inspector’s main conclusions, that because “the development does not fall within [the relevant] exception to Green Belt policy in paragraph 89 of [the NPPF]” it is “inappropriate in the Green Belt” (paragraph 12), and that although “the change of use of land or buildings to agriculture does not require planning permission …, that [was] not the development before [him]” (paragraph 13), are also, in my view, unassailable. Only if those conclusions were perverse, inadequately reasoned, or undermined in some other obvious way that offended the relevant principles of public law, could they be overturned by the court. They are not vulnerable to any such attack. They embody, in my view, an entirely lawful application of national Green Belt policy.

46. They are not rendered irrelevant – or, as Mr Bowes put it, an “exercise in futility”– by the description of development the parties had agreed. That description of the proposal distinguishes between the two parts of the proposal, the retrospective and the prospective. The retrospective part was intended to regularize the situation on the ground. Its purpose was to gain planning permission for the dwelling that had been constructed on the site without the required permission. It comprised everything in the description of development preceding the word “(retrospective)” – that is, the “[erection] of an occupational [worker’s] dwelling ancillary to use of the land for horticultural and agricultural purposes (retrospective)”. The prospective part was the “erection of a single storey extension to form [an] enlarged bedroom”. So the proposal was for operational development alone. No mention is made of any intended change of use.”

NPPF 89-90

Fordent Holdings v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin), HHJ Pelling KC

“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”1 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.” [19]

Footnote: “In the course of the submissions before me, I was told that the correct distinction was between inappropriate development and development that was “not inappropriate”. I note that this is not the phraseology adopted for example in Europa Oil and Gas Limited v. SSCLG (ante) where the antithesis of inappropriate is said to be “appropriate”. In this judgment I have maintained the phraseology used by the parties without reaching any judgment as to whether its use is correct.”

Change of use can fall within paragraph 81, but this does not mean by definition that a change of use falling within paragraph 81 is necessarily not inappropriate development for the purposes of paragraph 90: [23].

“There is no general exception for changes of use that maintain openness and do not conflict with the purposes of the Green Belt.”[24]

Paragraph 89 is a “closed list of classes” [25]. It applies only to the construction of new buildings [26].

“Merely because a proposed development is inappropriate does not mean that there is a prohibition on it. The categories of what constitute very special circumstances are not closed.” [28]

R (Wildie) v Wakefield Metropolitan BC [2013] EWHC 2769 (Admin), Stephen Morris KC
Zack Simons appeared for the Claimant

Considering “very special circumstances”

“First, the correct approach to the very special circumstances test is to ask the following question (adapting the wording of §70 in [Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin)] (as approved by Carnwath LJ in [Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692 [2009] PTSR 19] §26)):

“Given that inappropriate development is by definition harmful, the proper approach [is] whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the [countervailing benefit arising from the development] so as to amount to very special circumstances justifying an exception to the Green Belt policy”

“Thus, in considering whether to allow development in the Green Belt, the decision maker must consider, first , the “definitional” harm arising from the inappropriate development as well as such further harm to the Green Belt as is identified as being caused by the development in that case, and then secondly consider countervailing benefits said to be served by the development; and then consider whether those benefits clearly outweigh the harm so as to amount to very special circumstances. Secondly , in order to qualify as “very special”, circumstances do not have to be other than “commonplace” i.e. they do not have to be rarely occurring. Thirdly , the test is not one of whether the harm to the Green Belt (definitional or specific) is “significant or unacceptable”, either of itself or following the balancing exercise.

“I add that, whilst principally a case on the content of the “very special circumstances” test, Doncaster is also a case on the adequacy of the reasons given for a finding of very special circumstances. Although this is a case of an inspector’s decision and so does not directly relate to the Article 31 duty upon a local authority, nevertheless it does demonstrate the need for sufficient reasons so as not to be left in doubt as whether the very special circumstances test has been correctly applied: see Doncaster , §§74 and 75.”

R (Lloyd) v Secretary of State for Communities and Local Government[2014] EWCA Civ 839, Lord Dyson MR, Sullivan and Patten LJJ

Sullivan LJ held that paragraph 89 of the NPPF had to be interpreted in its statutory context, which distinguishes between operational development and change of use. [38]

References in national policy to “buildings”, or “the construction of new buildings”, do not include mobile homes. [39]

New Forest DC v Owen [2013] EWHC 265 (QB), Judge Thornton KC
Paul Brown KC appeared as Leading Counsel for the Council

The Green Belt policies in the NPPF can require consideration of temporary use of sites. [198]

Timmins v Gedling DC [2015] EWCA Civ 10, Richards and Tomlinson LJJ, Mitting J
Paul Brown KC appeared for the Claimants

Paragraph 89 is concerned with new buildings, and not with other types of development. [30]

“Paragraph 89, as its opening sentence makes clear, lays down a general rule that the construction of new buildings in the Green Belt is inappropriate development: “building” for this purpose has the wide meaning given by section 336 of the Town and Country Planning Act 1990 (see paragraph 7 above). The various bullet points are exceptions to that general rule and are therefore likewise concerned only with the construction of new buildings. Thus the second bullet point covers the construction of a building (for example, a café) as an appropriate facility for an existing cemetery, but it does not cover a material change in the use of land so as to create a new cemetery.”[30]

Tandridge DC [2015] EWHC 2503 (Admin), David Elvin KC

“It is common ground here that the meaning of the replacement building exception should be approached in a similar manner to the earlier manifestation of the exception considered in R (Heath and Hampstead Society) v Camden LBC [2008] 2 P&CR 13.” [18]

“Here the apparently simple question is whether “building” should be understood as meaning only a single building and excluding any group of two or more buildings. I agree that this term, and its role as an exception to the general principle that new buildings are inappropriate development in the Green Belt, should be considered in its context of the NPPF as a whole and in the context of the Green Belt policies in particular” [33]

“However, while noting the change in language from PPG2, the exception under consideration here is still found in the NPPF, and all parties urged me to adopt the same approach in respect of the “not materially larger” test as was endorsed in the Heath and Hampstead case with regard to paragraph 3.6 of PPG2.

I agree that this is the appropriate approach, because it appears to me that the exceptions, though modified, generally replicate those in PPG2 and more importantly the underlying purpose of this exception does not appear to me to have changed. This is not a case like Timmins where the court is being asked to imply a category of appropriate development omitted from the NPPF, but concerns the interpretation of a category of appropriate development which has been included, and is broadly similar to its predecessor.” [42]-[43]

Turner [2016] EWCA Civ 466, Arden, Floyd and Sales LJJ

The Inspector stated at para. 11 ‘Openness is essentially freedom from operational development and relates primarily to the quantum and extent of development and its physical effect on the appeal site.’

“I should mention that although in paras. 11 and 12 of the decision the Inspector referred to “operational development” rather than simply “development”, the judge correctly found that this was an immaterial slip and there is no appeal in that regard” [9]

“14 The concept of “openness of the Green Belt” is not narrowly limited to the volumetric approach suggested by Mr Rudd. The word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment occurs (in the context of which, volumetric matters may be a material concern, but are by no means the only one) and factors relevant to the visual impact on the aspect of openness which the Green Belt presents.

15 The question of visual impact is implicitly part of the concept of “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF. I consider that this interpretation is also reinforced by the general guidance in paras. 79-81 of the NPPF, which introduce section 9 on the protection of Green Belt Land. There is an important visual dimension to checking “the unrestricted sprawl of large built-up areas” and the merging of neighbouring towns, as indeed the name “Green Belt” itself implies. Greenness is a visual quality: part of the idea of the Green Belt is that the eye and the spirit should be relieved from the prospect of unrelenting urban sprawl. Openness of aspect is a characteristic quality of the countryside, and “safeguarding the countryside from encroachment” includes preservation of that quality of openness. The preservation of “the setting … of historic towns” obviously refers in a material way to their visual setting, for instance when seen from a distance across open fields. Again, the reference in para. 81 to planning positively “to retain and enhance landscapes, visual amenity and biodiversity” in the Green Belt makes it clear that the visual dimension of the Green Belt is an important part of the point of designating land as Green Belt.

16 The visual dimension of the openness of the Green Belt does not exhaust all relevant planning factors relating to visual impact when a proposal for development in the Green Belt comes up for consideration. For example, there may be harm to visual amenity for neighbouring properties arising from the proposed development which needs to be taken into account as well. But it does not follow from the fact that there may be other harms with a visual dimension apart from harm to the openness of the Green Belt that the concept of openness of the Green Belt has no visual dimension itself.

17 Mr Rudd relied upon a section of the judgment of Green J sitting at first instance in R (Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin) at [67]-[78], in which the learned judge addressed the question of the relationship between openness of the Green Belt and visual impact. Green J referred to the judgment of Sullivan J in R (Heath and Hampstead Society) v Camden LBC [2007] EWHC 977 (Admin); [2007] 2 P&CR 19 , which related to previous policy in relation to the Green Belt as set out in Planning Policy Guidance 2 (“PPG 2”), and drew from it the propositions that “there is a clear conceptual distinction between openness and visual impact” and “it is therefore wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact”: para. [78] (Green J’s emphasis). The case went on appeal, but this part of Green J’s judgment was not in issue on the appeal: [2015] EWCA Civ 10; [2016] 1 All ER 895.

18 In my view, Green J went too far and erred in stating the propositions set out above. This section of his judgment should not be followed. There are three problems with it. First, with respect to Green J, I do not think that he focused sufficiently on the language of section 9 of the NPPF, read as part of the coherent and self-contained statement of national planning policy which the NPPF is intended to be. The learned judge does not consider the points made above. Secondly, through his reliance on the Heath and Hampstead Society case Green J has given excessive weight to the statement of planning policy in PPG 2 for the purposes of interpretation of the NPPF. He has not made proper allowance for the fact that PPG 2 is expressed in materially different terms from section 9 of the NPPF. Thirdly, I consider that the conclusion he has drawn is not in fact supported by the judgment of Sullivan J in the Heath and Hampstead Society case.” [14-18]

“The openness of the Green Belt has a spatial aspect as well as a visual aspect, and the absence of visual intrusion does not in itself mean that there is no impact on the openness of the Green Belt as a result of the location of a new or materially larger building there. But, as observed above, it does not follow that openness of the Green Belt has no visual dimension.” [25]

“It was rational and legitimate for [the Inspector] to assess on the facts of this case that there is a difference between a permanent physical structure in the form of the proposed bungalow and a shifting body of lorries, which would come and go; and even following the narrow volumetric approach urged by the appellant the Inspector was entitled to make the assessment that the two types of use and their impact on the Green Belt could not in the context of this site be “directly compared as proposed by the appellant” (para. 13). The Inspector was also entitled to take into account the difference in the visual intrusion on the openness of the Green Belt as he did in para. 14.”[27]

LB Bromley [2016] EWHC 595 (Admin), David Elvin KC

‘In my judgment, it is unnecessary to gloss the paragraph 89 exceptions and they should be read naturally and in the context that it is part of the statutory planning code that permission for new buildings always carries with it permission for the use of the buildings. The paragraph 89 exceptions can only be concerned with the use of new buildings, since the exceptions must all involve new buildings of some description. To include changes of use with respect to those new buildings does not involve contradicting the judgment of Timmins since it was concerned with whether there was a unstated general category of appropriate development comprising a material change of use of land. …

It goes too far to extend the reasoning of the Court of Appeal in Timmins , concerned as it was with whether material changes of use comprised a category of appropriate development, to apply it to the paragraph 89 exceptions when the Court’s reasoning was closely based on the fact that what was appropriate development was what was set out in the NPPF and the NPPF made no provision for a material change of use as a freestanding category of appropriate development. There was nothing inherent in the concept of a material change of use which led the Court in Timmins to consider that it was not suitable in principle to be appropriate development. Indeed given that there had been such a category in the former PPG2 demonstrates otherwise. The point was, put at its simplest, that what is appropriate development is what is set out in the NPPF and the NPPF does not make provision for a general category of material change of use which preserves openness.’ [36]-[37]

‘It follows that, in my judgment, providing the new buildings fall within the use and other restrictions of the applicable indent of paragraph 89 the mere fact that permission for a new building may also involve a material change of use does not mean that it ceases to be appropriate development. This is a matter of the construction of language and purpose of the paragraph and that to interpret it according to that meaning and purpose appears to me to be consistent with a straightforward reading of it. Contrary to Miss Grogan’s submission, it simply does not bring in via the back door the general material change of use of land category rejected in Timmins . The only changes of use permitted in paragraph 89 are those arising from the new buildings defined as appropriate under it and in accordance with the conditions there set out.’ [47]

Davis [2016] EWHC 274 (Admin)

HHJ Cooke considered whether there was a “general test” that development is appropriate so long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Referring to Timmins at [31]:

‘Neither Mitting J nor Tomlinson LJ therefore expressed a view as to whether there was any “general test” such as Richards LJ had rejected. But the clear inference must be that they did not consider that there was any such test, since if there had been it would have been relevant to the outcome of the case. The cemetery had been agreed not to affect openness; if it was to be presumed not to be inappropriate for that reason the appeal should have succeeded. Further, none of the judges in the Court of Appeal disagreed with Green J’s conclusion that prima facie all development in the Green Belt is to be regarded as inappropriate unless within the stated exclusions. The only scope for expanding the list of exclusions left open is development complying with the positive obligations in para 81.’ [66]

R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404, Treacy, Underhill, Lindblom LJJ

“Implicit in the policy in paragraph 89 of the NPPF is a recognition that agriculture and forestry can only be carried on, and buildings for those activities will have to be constructed, in the countryside, including countryside in the Green Belt. Of course, as a matter of fact, the construction of such buildings in the Green Belt will reduce the amount of Green Belt land without built development upon it. But under NPPF policy, the physical presence of such buildings in the Green Belt is not, in itself, regarded as harmful to the openness of the Green Belt or to the purposes of including land in the Green Belt. This is not a matter of planning judgment. It is simply a matter of policy. Where the development proposed is an agricultural building, neither its status as appropriate development nor the deemed absence of harm to the openness of the Green Belt and to the purposes of including land in the Green Belt depends on the judgment of the decision-maker. Both are inherent in the policy.

If the policy in the first sentence of paragraph 88 of the NPPF meant that “substantial weight” must be given to the effect a proposed agricultural building would have on the openness of the Green Belt and on the purposes of including land within the Green Belt, the policy in paragraph 89 categorizing such buildings as appropriate development in the Green Belt, regardless of such effects, would be negated. This cannot have been the Government’s intention.” [20]-[21]

R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin), Supperstone J
Andrew Parkinson appeared for the Claimant
Neil Cameron KC and Zack Simons appeared for the Defendant

The Officer Report found that there was an impact upon the openness of the Green Belt, but concluded that “the proposal represents appropriate development within the Green Belt. The proposal is not considered to have a significant adverse impact on the openness of the Green Belt or the amenity of nearby properties.” The Council therefore approved the application for planning permission without applying the ‘very special circumstances’ test.

This decision was quashed as being unlawful.

R (Tate) v Northumberland County Council [2018] EWCA Civ 1519, Lindblom and Peter Jackson LJJ

“37. The question of whether a particular proposed development is to be regarded as “limited infilling” in a village for the purposes of the policy in paragraph 89 of the NPPF will always be essentially a question of fact and planning judgment for the planning decision-maker. There is no definition of “infilling” or “limited infilling” in the NPPF, nor any guidance there, to assist that exercise of planning judgment. It is left to the decision-maker to form a view, in the light of the specific facts. Can this proposed development be regarded as “limited infilling”, or not, having regard to the nature and size of the development itself, the location of the application site and its relationship to other, existing development adjoining it, and adjacent to it? That is not the kind of question to which the court should put forward an answer of its own. Nor will it readily interfere with the decision-maker’s own view. I agree with the observations to the same effect made by Sullivan L.J. in Wood v Secretary of State for Communities and Local Government [2015] EWCA Civ 195 (in paragraph 12 of his judgment):

“12. Before this court it was common ground that whether or not a proposed development constituted limited infilling in a village for the purpose of paragraph 89 [of the NPPF] was a question of planning judgment for the inspector and the inspector’s answer to that question would depend upon his assessment of the position on the ground. It was also common ground that while a village boundary as defined in a Local Plan would be a relevant consideration, it would not necessarily be determinative, particularly in circumstances where the boundary as defined did not accord with the inspector’s assessment of the extent of the village on the ground. …”.”

Euro Garages Ltd [2018] EWHC 1753 (Admin), Jefford J

“18 Perhaps precisely because it is not a statute, bullet point [6] [of NPPF 89] does not entirely make sense. A sensible reading requires the insertion of a few words so that the exception reads:

“limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and [conflict more with] the purpose of including land within it than the existing development.””

“21 “Openness” is not a defined term but, in my view, it is clear in this context that it is openness of the Green Belt that must be considered not the site as such. That is not merely the wording of the paragraph but must be the case because any infill would, almost by definition, have an impact on the openness of a site.”

“23 I largely accept these submissions on behalf of Euro Garages. Firstly it seems to me that Mr Leigh is right to submit that, in the context of the exceptions under paragraph 89, for there to be a greater impact on the openness of the Green Belt there must be something more than just some change to the environment. In each of the instances under the bullet points, it is contemplated that there will be some change to what is presently there. But, despite that change, the openness of the Green Belt will be preserved (bullet point [2]) and/or there will not be a “disproportionate” addition or something “materially larger” (bullet points [3] and [4]). In the case of infill there will necessarily be a change to the scope of the build. So for there to be a greater impact there must be something more. That view is consistent with the decision in the Samuel Smith case to which I refer further below. Whether or not there is a greater impact is a matter of judgment.

24 I would not wish to decide, for all purposes, that the concepts of not having a greater impact on the openness of the Green Belt and of preserving the openness of the Green Belt are identical. Having said that, there is an obvious reason why the wording in differs paragraphs and bullet points differs. Where there is no existing development, consideration must be given to whether the development preserves the openness of the Green Belt. Where there is some existing development, the openness of the Green Belt has not been wholly preserved and there will necessarily have been some impact on the openness of the Green Belt already. It makes sense, therefore, to consider whether there will be a greater impact from the contemplated limited infilling. Asking the question whether there is any greater harm is one way of assessing the impact.”

“29 It does not seem to me that [the decision of the Court of Appeal in Samuel Smith Old Brewery (Tadcaster) (An Unlimited Company), Oxton Farm (An Unlimited Company) v North Yorkshire County Council [2018] EWCA Civ 489] defines the meaning of “greater impact” or even of “preserving” the openness of the Green Belt but it supports the view, firstly, that a mere change in the current build is not sufficient to establish that there is a greater impact on the openness of the Green Belt. Put another way, whether the openness of the Green Belt is preserved, or conversely harmed, is not simply a question of whether something, which by definition has a spatial impact, is to be built. Further, the question of whether the openness of the Green Belt is preserved will generally involve an assessment of the visual or perceived impact. That is a matter of planning judgment but it is a matter that needs to be considered.”

“36 It seems to me that the only basis on which the Inspector could have reached that conclusion was if she considered that the greater floor area and/or volume necessarily meant that there was a greater impact. The flaw in that reasoning is that any infill (however limited) would necessarily result in greater floor area or volume and it involves the assumption that any change would have a greater impact. As I have said, the concept of greater impact involves something more than that.”

R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire CC [2020] UKSC 3, Lady Hale PSC, Lord Carnwath, Lord Hodge, Lord Kitchen and Lord Sales JJSC
Daniel Kolinsky KC and Hannah Gibbs appeared for the Council

“5. It is clear… that the visual quality of the landscape is not in itself an essential part of the “openness” for which the Green Belt is protected.
…

11. It will be noted that a possible textual issue arises from the way in which the PPG2 policies have been shortened and recast in the NPPF. In the PPG the openness proviso is in terms directed to forms of development other than mineral extraction (it also appears in the section on re-use of buildings: para 3.8). By contrast, mineral extraction is not expressly subject to the proviso, but may be regarded as not inappropriate, subject only to “high environmental standards” and the quality of restoration. In the shortened version in the NPPF these categories of potentially appropriate development have been recast in para 90, and brought together under the same proviso, including the requirement to preserve openness.

12. I do not read this as intended to mark a significant change of approach. If that had been intended, one would have expected it to have been signalled more clearly. To my mind the change is explicable as no more than a convenient means of shortening and simplifying the policies without material change. It may also have been thought that, whereas mineral extraction in itself would not normally conflict with the openness proviso, associated building or other development might raise greater problems. A possible example may be seen in the Europa Oil case discussed below (para 26).

13. …development which is “appropriate” in Green Belt may be found unacceptable by reference to other policy constraints.
…

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.

23. It seems surprising in retrospect that the relationship between openness and visual impact has sparked such legal controversy. Most of the authorities to which we were referred were concerned with the scope of the exceptions for buildings in para 89 (or its predecessor). In that context it was held, unremarkably, that a building which was otherwise inappropriate in Green Belt terms was not made appropriate by its limited visual impact…

39. With respect to Lindblom LJ’s great experience in this field, I am unable to accept his analysis [in the Court of Appeal’s decision]. 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.

40. Lindblom LJ criticised the officer’s comment that openness is “commonly” equated with “absence of built development”. I find that a little surprising, since it was very similar to Lindblom LJ’s own observation in the Lee Valley case (para 23 above). It is also consistent with the contrast drawn by the NPPF between openness and “urban sprawl”, and with the distinction between buildings, on the one hand, which are “inappropriate” subject only to certain closely defined exceptions, and other categories of development which are potentially appropriate. I do not read the officer as saying that visual impact can never be relevant to openness.

41. …I respectfully agree with Hickinbottom J [in the High Court’s decision] that such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law.”

NPPF 90

Europa Oil and Gas v SSCLG [2013] EWHC 2643 (Admin), Ouseley J
Stephen Whale appeared for Leigh Hill Action Group
Charles Banner appeared for the Secretary of State

In NPPF 90, “mineral extraction” includes mineral exploration and appraisal. [44]

The reference to “engineering operations” in NPPF 90 clearly draws on the use of the term in s.55 of the Town and Country Planning Act 1990. [53]

Europa Oil and Gas [2014] EWCA Civ 825
Stephen Whale appeared for the Leigh Hill Action Group

The meaning of “mineral extraction” in paragraph 90 should be interpreted consistently with the meaning of the word later in the NPPF. Later paragraphs lean in favour of “mineral extraction” meaning exploration as well as production. [16]

Timmins v Gedling DC [2015] EWCA Civ 10, Richards and Tomlinson LJJ, Mitting J
Paul Brown KC appeared for the Claimants

Richards LJ and Mitting J differed on the question of whether NPPF 90 should be regarded as a closed list. Tomlinson LJ preferred not to express a firm view on the question, it not being necessary to determine on the facts.

R (Lee Valley Regional Park Authority) v Broxbourne Borough Council[2015] EWHC 185 (Admin), Ouseley J

“I would accept that the effect of development on openness may involve questions of degree. and that there may be scope for some reduction in height and bulk offsetting some greater extent or spread of built area, and, if so, that how far the offset goes before the impact on openness increases can be a matter of impression. A conclusion on the degree of impact on openness is essential to reliance on the new flexibility for “previous developed land” in the first place … and to the analysis of harm.” [59]

Turner [2015] EWHC 2728 (Admin), Lang J
Sasha Blackmore appeared for the Secretary of State

““Openness” is not defined in the NPPF. The Inspector, at paragraph 11, described it as “essentially freedom from operational development”. I agree with the Claimant that the meaning of openness is freedom from any development, not just operational development. However, in my view, this was a slip by the Inspector which did not materially affect his reasoning, so as to give rise to an arguable ground of appeal. It is apparent from paragraph 79 of the NPPF that openness is an “essential characteristic” of the Green Belt which the policy protects.” [26]

“The Claimant submits that the Inspector wrongly elided the concept of openness with the concept of visual impact in paragraph 14. These are two different concepts, though often closely related…” [33]

R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404, Treacy, Underhill, Lindblom LJJ

“There is no difference between the concept of development being not “inappropriate” and the concept of its being “appropriate”” [8]

Smith [2017] EWHC 2562 (Admin), Sir Ross Cranston
Richard Turney appeared for the Claimant
Zack Simons appeared for the Secretary of State

“I cannot accept that in the light of Sales LJ cogent analysis [in Turner] the concept of openness is confined to the visual impact arising from buildings. Indeed, that is clear from Turner (supra) itself, when the impact on existing openness of the vehicles and so on around the site were taken into account. Even if the visual impacts the inspector identified in this case could not be said to be part of the development, that did not mean that they were to be ignored. The NPPF does not require an inspector to disaggregate the impacts of non-development features from the impacts of proposed development more generally.” [30]

The 2012 NPPF: A Digest of Decisions

Section 9 – Protecting Green Belt land

The 2012 NPPF: A Digest of Decisions

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