Development on unallocated sites within the Green Belt can be challenging. An obvious statement perhaps, primarily due to the protection afforded under the National Planning Policy Framework (2019) (“NPPF”). Many would support a relaxation of the restrictions, as advocated by the head of the National Infrastructure Commission just earlier this month.
The NPPF regards all new buildings in the Green Belt as “inappropriate”, which should not be approved except in very special circumstances (“VSC”). As an aside, the Courts continue to emphasise that VSC is a matter of planning judgment for the decision maker (a common concept which I will return to), that do not necessarily need to be unique. This is helpful when trying to establish, or indeed persuade a decision maker, that VSC exist to justify approval.
Paragraphs 145 and 146 of the NPPF contain a number of exceptions to “inappropriate” development. This includes “mineral extraction”, provided that it preserves Green Belt openness and does not conflict with its purposes.
The Supreme Court recently grappled with this exception in Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3, which has wider application for all other planning applications proposing development within the Green Belt. The Court considered the “short point” as to whether the County Council correctly understood the meaning of “openness” when deciding to grant planning permission for a 6 hectare quarry extension within the North Yorkshire Green Belt.
Much sympathy may be had for the Respondent; a quarry operator already subject to some 7 years of litigation before the Supreme Court hearing. Its original planning permission for the quarry extension was quashed primarily due to Environmental Impact Assessment failings (often a popular – but mostly avoidable - ground of challenge).
Fast forward some 7 years, the Supreme Court considered whether Lindblom LJ’s decision to quash the latest planning permission should stand, as he found the officer’s report “defective, at least, in failing to make clear to the members that…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’…” [49].
In a relatively short decision, the Supreme Court upheld the planning permission. Helpfully, the following approach of Sales LJ in Turner [2016] EWCA Civ 466 was not disputed:
“The concept of ‘openness of the Green Belt’ is not narrowly limited to the volumetric approach suggested by [counsel]. The word ‘openness’ is open-textured and a number of factors are capable of being relevant… 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 … and factors relevant to the visual impact on the aspect of openness which the Green Belt presents.” [25]
Acknowledging that Turner did not specify how visual effects may or may not be taken into account, the Supreme Court helpfully held:
“[Openness] is a matter not of legal principle but of planning judgement for the planning authority or the inspector” [25] … “…There was no error of law on the face of the report. Paragraph 90 [now NPPF146] 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.” [39]
The outcome is not surprising – quite simply visual impacts may be relevant to openness as a matter of planning judgment. I therefore sympathise with Lord Carnwath’s initial reaction that it was “surprising in retrospect that the relationship between openness and visual impact has sparked such legal controversy.”
Nonetheless, being a Supreme Court decision, Samuel Smith is useful authority that visual impacts may be taken into account when considering the impact on openness. Even for schemes that do not fall within one of the NPPF exceptions of “inappropriate” development (such as proposals for residential development on unallocated sites within the Green Belt), this decision is helpful.
For example, through carefully prepared landscape and visual impact evidence, arguments may be made that because of the lack of visual impact (or for example visual impact of insignificant magnitude), this effectively ameliorates the impact on openness in spatial terms. If the degree of harm to openness is reduced, in turn this should enable a decision maker to conclude that the level of VSC required to overcome that harm should be reduced accordingly. The key message for applicants is to ensure this case is put forward as robustly as possible in the application documents and supporting evidence.
The Supreme Court also reinforced the distinction between application of planning policies (a matter for the decision maker subject to rationality etc) and their interpretation (a matter usually reserved for the Court). The question of “openness” and relevance of “visual impact” falls within the former category.
In addition, the Supreme Court also dismissed Samuel Smith’s separate argument that the County Council erred by failing to have regard to “visual effects” as a relevant “material consideration” as required by section 70 (2) of the Town and Country Planning Act 1990. As we know, section 70 (2) requires decision makers to have regard to the provisions of the development plan and “any other material considerations”.
Summarising a number of authorities, the Supreme Court upheld the well-known principle set out in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin) which concerned the requirement to consider alternatives:
“It is trite and long-established law that the range of potentially relevant planning issues is very wide …and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker…On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so.”
The Green Belt paragraphs in the NPPF, when referring to openness, do not expressly refer to visual impact. Unsurprisingly therefore, the Supreme Court held that visual impact was not a necessary part of the analysis of openness but reinforced the view that matters relevant to openness – including visual impacts - were ultimately a matter of planning judgment, and not law.
Samuel Smith therefore provides another example of why the planning process should not be overly legalised and illustrates the reluctance of the Courts to interfere with matters of planning judgment. At the same time however, objectors to planning permissions continue to increasingly scrutinise officer’s reports and the decision making process to find legal error to support a legal challenge.
Many challenges we have successfully defended over recent years have focussed on an alleged failure of the authority to properly discharge the section 38 (6) exercise (an exercise which we are all of course familiar), whether this is concerned with the interpretation of planning policies, or criticism that certain policies relevant to the determination have not been grappled with correctly or at all. Challenges alleging failures to comply with EIA or Habitats Regulations duties also remain popular, alongside the adequacy of reasoning or consultation.
If experience has taught us one thing, most – if not all – successful judicial review challenges are avoidable. From schemes where legal input has been sought during the application process, quite often a few additional sentences in an officer’s report, or caution when determining applications under EIA or Habitats Regulations, has made all the difference between successfully upholding the permission, or not.
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