Green Belt

"Openness"

Visual concept?

R (on the application of Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3

Summary

"Openness" of the Green Belt is not an essentially visual concept.

Facts

The appellant, the local planning authority, granted planning permission for an extension to a quarry in North Yorkshire.

The officer’s report to the planning committee detailed a range of planning considerations, including the potential landscape impacts and the consequent need to ensure that mitigation measures were maximised. In one section, the report addressed the issue of the openness of the Green Belt in relation to the proposal.

The National Planning Policy Framework (NPPF) states that the construction of new buildings in the Green Belt is “inappropriate” development and should not be approved except in “very special circumstances”, unless the proposal is within one of the specified categories of exception in the “closed lists” in paragraphs 89 and 90 of the NPPF. Mineral extraction is one of those forms of development listed in paragraph 90 of the NPPF as “not inappropriate” “provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt.”

Issues

Whether the planning officer had misinterpreted, and therefore misled the planning committee, as to the proper approach to “openness” of the Green Belt.

First instance

The High Court rejected the challenge, finding the officer’s report was not required to consider the visual impact from the development.

Decision of the Court of Appeal

Allowing the appeal, the Court of Appeal held the officer’s report was defective insofar as it failed to make clear that, under paragraph 90 of the NPPF, visual impact was a potentially relevant and potentially significant factor; and further that on the officer’s findings visual impact was quite obviously relevant and therefore a necessary part of the assessment.

Decision of the Supreme Court

It was held that on a proper reading of the current and past national policy on Green Belt, the visual quality of landscape is not in itself an essential part of openness for which the Green Belt is protected. It will not necessarily be an error for a decision maker dealing with Green Belt issues to omit to mention the visual aspect of openness.

Openness is not necessarily a statement about the visual qualities of the land, nor does it imply freedom from all forms of development, since some forms of development (e.g. agricultural buildings) may be inherently appropriate development in the Green Belt.

That being so, the question for the court was whether visual impact was a consideration which as a matter of law or policy was necessary to be considered or was so obviously material as to require such direct consideration.

The officer’s report did not suggest that visual impact can never be relevant to openness (which would have been an error, given the nature of paragraph 90 of the NPPF). Indeed, some visual effects were given weight in the consideration of the restoration of the site. The relatively limited visual impact fell short of being so “obviously material” that failure to address it expressly was an error of law, as did the fact that the proposed development was an extension to the quarry. These were matters of planning judgment.

Comment

This is a surprising result, and as well as overturning the Court of Appeal’s decision directly below, goes against the decision of Sales LJ (as he then was) in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466, who at paras 15-16 of that judgment had emphasised that visual impact is “implicitly part of the concept of openness”. This is made more surprising still by the fact that Lord Sales agreed with the sole judgment of Lord Carnwath in the present case.

Aside from interpretation of Green Belt policies, this judgment is interesting for broader public law purposes insofar as it explores the caselaw on when a consideration is “so obviously material” that to fail to take it into account is an error of law (at [29]-[32]).

 

Release of Green Belt land

Exceptional Circumstances – need for housing

Compton Parish Council v Guildford Borough Council

[2019] EWHC 3242 (Admin)

Summary

The “exceptional circumstances” required to justify release of Green Belt land is a matter for a decision maker over which they have broad discretion, and there is no reason in principle why the need for housing cannot be such a circumstance.

Facts

This case concerned a number of challenges by judicial review to the adoption by Guildford Borough Council of the Guildford Local Plan on 25 April 2019. One of these challenges concerned the ever-contentious issue of the release from Green Belt status of tracts of land surrounding Guildford in order to meet the need for housing. The challenge under this heading was whether the Planning Inspector considering the Local Plan had properly considered, and provided legally adequate reasons for, his conclusion that the objectively assessed need should be met in full, notwithstanding that this would require release of Green Belt land.

The National Planning Policy Framework (NPPF) allows for release of Green Belt land where “exceptional circumstances” are met.

Decision

As to the question of whether the policy concept of “exceptional circumstances” had been interpreted and applied properly, Ouseley J. noted there is no definition of the concept, but that it will necessitate a planning judgment to be made in all the circumstances of any given case, the only legal restriction on which is that it must be rationally defensible. The expression was “deliberately broad” (paragraphs 68-69).

The significant point emerging from the judgment is that the “exceptional circumstances” test for release of Green Belt through the plan-making system is less demanding than the development control (planning permission) test for permitting inappropriate development in the Green Belt, for which “very special circumstances” must be shown. In that respect, Ouseley J. has endorsed the remarks of Sales L.J. (as he then was) in R (Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at paragraph 56 to similar effect.

Furthermore, there was no principled reason why need for the supply of land for ordinary housing could not constitute exceptional circumstances. There was nothing irrational in the Inspector having considered the existence of constraint on land available for supply by the existence of the Green Belt was not a justification for reducing the housing requirement, since exceptional circumstances existed to merit release of some Green Belt land with “relatively limited impacts on openness… and without causing severe or widespread harm to its purposes” (paragraph 87).

 

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