Category Archives: Green Belt

Planning permission failed to properly address impact on Green Belt openness

The National Planning Policy Framework (“NPPF”) says:

“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this … [include]:

provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
… ”
In Boot, R (On the Application Of) v Elmbridge Borough Council [2017] the Defendant’s development plan policy DM17 – Green Belt (Development and New Buildings) said:

“b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building’s function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme.”

The planning officer’s report found that the new £17.9m sports ground use proposed, and the buildings and structures required to support it, including the pavilion, floodlights, fencing and car park, would have an impact on the openness of the Green Belt but considered that it would not be significant.

The Defendant’s planning committee accepted in its Statement of Reasons that:

“There will be a limited adverse impact on landscape and visual amenity and ‘openness’ of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damaged land which is supported by para 81 of the NPPF.”

Quashing the planning permission the High Court agreed with the Applicant’s barrister that:

“if a proposal has an adverse impact on openness, the “inevitable conclusion” … is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: “Other harm” may include non – green belt factors

Amongst the twelve “Core planning principles” in the National Planning Policy Framework (“the Framework”) is the protection of the Green Belt around main urban areas.

Under Paragraph 87, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

Under Paragraph 88, substantial weight must be given to any harm to the Green Belt. ‘Very special circumstances‘ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

Do the words “any other harm” mean “any other harm to the Green Belt”, or do they extend to any other harm that is relevant for planning purposes, for example harm to landscape character, noise disturbance, adverse visual impact or adverse traffic impact?

Failing to take account of non – Green Belt harm as “any other harm” would make it easier to get planning permission for inappropriate development in the Green Belt as it would remove some of the obstacles to establishing “very special circumstances”. That is because all of the considerations in favour of granting permission would now be weighed against only some, rather than all, of the planning harm that an inappropriate development would cause in the Green Belt.

In Secretary of State for Communities and Local Government & Ors v Redhill Aerodrome Ltd [2014] the Court of Appeal said that had the Government intended to make such a significant change to Green Belt policy in the Framework it would have been expected to have made a clear statement to that effect.

All “other considerations” would, by definition, be non-Green Belt factors. If all “other considerations” in favour of granting permission, had to go into the planners’ weighing exercise, there could be no sensible reason to exclude “any other harm”, whether it was Green Belt or non-Green Belt harm, from that weighing exercise.

The Framework did not derogate from the fundamental statutory duty to have regard to “any other material consideration” when determining a planning application or appeal.

When deciding whether “material considerations indicate otherwise” the local planning authority or the Secretary of State would consider all of the “material considerations” i.e.:

– those which point in favour of granting permission e.g. employment and economic considerations, and

– those which, in themselves, or in combination with them conflicting with the development plan, militated against the grant of permission.

If the proposed development would cause some, insignificant harm to biodiversity, some insubstantial harm to the setting of a listed building, and some, unsevere residual adverse cumulative transport impact, those harmful impacts would nevertheless constitute “material considerations” militating against the grant of planning permission.

The fact biodiversity grounds, heritage grounds or transport grounds would not of themselves justify a refusal of planning permission did not mean that planners could simply ignore their harm to those interests. Though the weight to be given to that harm would for the local authority planning committee or Planning Inspector to decide in the light of the policies set out in the Framework.

In short they would not cease to be a “material consideration” merely because that particular ground, taken individually, had not crossed the threshold in the Framework for a refusal of planning permission.

If development is proposed within the Green Belt, the position will be no different, save that the “very special circumstances” test will be applied if the proposal is for inappropriate development within the Green Belt.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning inspector should not have been influenced by Non Green Belt harms

Paragraph 88 of the National Planning Policy Framework (“NPPF”) requires a planning decision taker, whether the Secretary of State through his Inspector, or a local planning authority, to ensure that substantial weight is given to any harm to the Green Belt. The function of the Green Belt is vital to the planning system.

To what extent can planners take into account “any other harm”, not listed under Green Belt in the NPPF, when considering inappropriate development in the Green Belt under the NPPF?

The revised policy framework under the NPPF is much more prescriptive towards decision takers than the previous guidance in the PPGs and PPSs.

There has been a major change of policy there.

Next, where an individual material consideration is harmful but the degree of harm has not reached the level which the NPPF prescribes as warranting refusal, would it be wrong to include that consideration as “any other harm”?

In Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government & Ors [2014] the High Court ruled that the answer was “yes”.

Here, the Inspector recognised that substantial weight should be attached to harm occasioned by the proposed development in the Green Belt. That conclusion was derived from her finding that

i) the development of the intended runway and related structures was inappropriate development in the Green Belt, and that

ii) there was a conflict with the Green Belt aim of preventing encroachment into the countryside.

The question was whether the Inspector was right to take into account other possible sources of harm?

The Inspector itemised those possible sources at paragraph 17 of her decision letter. They were landscape character and visual impact, noise and disturbance, highway capacity and safety, mode of travel, and the effect on airspace safety.

Given the clear guidance given in the NPPF It was not right for the Inspector to have taken the non Green Belt harms into account.

But could individual considerations be considered together as part of a cumulative consideration of harm even though individually each harm was evaluated to be at a lower level than prescribed for refusal in the NPPF?

It would not be right to do so. For the NPPF is a framework for clear decision making. There were no words in planning policy that permit a residual cumulative approach to Green Belt when each of the harms identified against a proposal is at a lower level than would be required for refusal if each harm was assessed on an individual basis.

In the absence of such wording, it was in clear conflict with current policy to allow a combination of adverse impacts, each at a lower level than prescribed for individual impacts, to be aggregated and cumulatively assessed as part of the harm of a Green Belt proposal.

It would re-introduce a possibility of cumulative harm which the NPPF does not provide for.

The NPPF did contemplate findings of residual cumulative harm in certain circumstances, as in paragraph 32, where it dealt with the residual cumulative impact of transport factors. However, that wording did not occur in the Green Belt section of the NPPF.

The decision of the Inspector was quashed.

This blog has been posted as a matter of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Challenge to Development Plan Document too late in process

Under the statutory scheme a Development Plan document (“DPD”) is submitted by a Local Planning Authority when it is of the view that the document is ready for independent examination.

The examination then occurs into the DPD which is under the control of a Planning Inspector throughout. If a Local Planning Authority request an Inspector to do so he must recommend modifications to the DPD to make it sound.

Section 23 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) deals with the question of adoption of local development documents. It provides,

“(2) The authority may adopt a development plan document as originally prepared if the person appointed to carry out the independent examination of the document recommends that the document as originally prepared is adopted.

(3) The authority may adopt a development plan document with modifications if the person appointed to carry out the independent examination of the document recommends the modifications.”

In the Planning Court case of IM Properties Development Ltd v Lichfield District Council & Ors [2014] the Lichfield Local Plan Development Strategy was undergoing the process of examination.

The Inspector had concluded that it would not be sound to adopt the plan as presented to him and so had recommended that modifications be carried out to enable it to meet the statutory requirements.

So, the process of examination was suspended whilst further work was being carried out on the main modifications for the Inspector to examine further when the examination process had resumed.

During the consultation period on the main modifications the claimant and first and second interested parties (both national builders) had all submitted further representations.

The Inspector may or may not be satisfied by the main modifications in the examination process. It followed that Lichfield had reached an integral part of an advanced local plan process.

The defendant, the first interested party and the second interested party all said that the claimant was barred by reason of section 113(2) of the 2004 Act.

Section 113 is headed ‘validity of strategies, plans and documents’ and the relevant parts say:

“(1). This section applies to-…

(c) a Development Plan document;

(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

(3) A person aggrieved by relevant documents may make an application to the High Court on the ground that-

(a) The document is not within the appropriate powers;

(b) A procedural requirement has not been complied with.

(4) But the application must be made not later than the period of six weeks starting with the relevant date…

(11) Reference to the relevant date must be construed as follows-

(c) For the purposes of a Development Plan document (or a revision of it), the date when it is adopted by the Local Planning Authority or approached by the secretary of state (as the case may be);…”

The claimant contended that a Local planning authority resolution to adopt main modifications may be quashed firstly, through Section 113 and second by an application for judicial review. One did not exclude the other.

The claimant said that the submissions of the defendant, first interested party and second interested party were all predicated on the basis that the application was to quash a DPD. It was not. The claimant was seeking a quashing order of the main modifications.

However what was at issue were the main modifications which had been endorsed by the council within a local plan process approaching its end.

The court was not dealing with an early claim for judicial review testing the lawfulness of decision taking in the run up to a statutory process. Instead the court was dealing with a claim for judicial review taken during the statutory process. Far from saving time and expense that could add time and expense to the process then underway.

Although the claimant said it did not seek to question a document covered by Section 113, the claimant was actually seeking a quashing order of main modifications. If successful such a claim would abort the current plan making process when it was at an advanced stage.

That would lead to considerable delay and expense not only to the participants in that case but also to others who had made representations on the modifications which would be considered by the Inspector at the resumed examination.

The effect of a successful challenge would be to start that process off again: a re-making of main modifications, further consultation, further representations which would then be considered at a deferred examination.

Parliament had inserted the section 113 ouster in the statutory provision, precisely because of the potential chaos that could be caused by a successful challenge at that stage in the plan making process.

Once a document becomes a DPD within section 113 of the 2004 Act it must not be questioned in any legal proceedings except in so far as is provided by the other provisions of the section.

Sub-section (11)(c) makes it clear that for the purposes of a DPD or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs to bring a statutory challenge.

Once a document had been submitted for examination it is a DPD. The main modifications which have been proposed and which will be the subject of examination are potentially part of that DPD.

Any other interpretation would licence satellite litigation at an advanced stage of the Development Plan process.

The claimant’s suggestion that at such a stage the claimant had a choice whether to challenge by way of judicial review or to await the adoption and then challenge under Section 113 was invalid.

The claim was not one that can be lawfully brought by reason of the operation of Section 113(2).

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Mobile homes not dwellings replaceable by houses in green belt

To the extent that replacements for buildings are permitted in the green belt does this extend to permanent buildings providing replacements for caravans and other mobile homes?

You would have thought this was pushing things a bit and you would be right.

In Lloyd & Anor v Secretary of State for Communities And Local Government & Anor [2014] the applicant appealed against a refusal of its challenge, under section 288 of the Town and Country Planning Act 1990 (“the Act”), to an unsuccessful planning appeal.

The applicant sought permission to retain a “replacement dwelling” on green belt land at Doone Brae Farm, Windmill Road, Pepperstock in Hertfordshire.

The “replacement dwelling” was, in fact, a Canadian log cabin, which had, in 2003, replaced a mobile home that was stationed on the site.

Despite a number of attempts, the log cabin did not have planning permission.

The Court of Appeal found the Council’s Local Plan to be consistent with the National Planning Policy Framework (“the Framework”) on Green Belt.

The Framework’s main policy dispensation (Policy 89) related to replacement for buildings, given their ordinary and natural meaning, and did not include replacements for caravans or other mobile homes.

The purpose of Policy 89 was to set out the exceptions to the general rule that “the construction of new buildings” is inappropriate development in the green belt. A building is something that is constructed on a site. It does not include a moveable structure that was constructed off site and merely assembled and stationed on a site.

It was plain that references to dwellings in the policy exceptions to green belt protection could only be permitting replacements to dwellings which had been buildings or houses and not caravans or other mobile homes.

Had the appellant been correct it would have undermined the protection afforded to the green belt because it would have permitted the replacement of moveable, non-permanent structures with permanent buildings.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Planning committee gave insufficient weight to harm to Listed Buildings and Conservation Area

In The Forge Field Society & Ors, R (On the Application Of) v Sevenoaks District Council [2014] the Council faced judicial review of its decision to grant planning permission for affordable housing in Penshurst a village in the High Weald Area of Outstanding Natural Beauty and the Metropolitan Green Belt. Affected by this was Forge Field, about a third of a hectare of rough grassland, sloping down from the High Street. It was in the Penshurst Conservation Area, within the settings of Star House, a grade II* listed building erected in 1610, and Forge Garage, a building in the Arts and Crafts style, listed at grade II.

The High Court said sections 66 and 72 of the Listed Buildings Act did not allow a local planning authority to treat the desirability of preserving the settings of listed buildings and the character and appearance of conservation areas as mere material considerations to which they can attach as much weight as they see fit.

An authority’s assessment of likely harm to the setting of a listed building or to a conservation area was a matter for its own planning judgment. But when an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight.

A finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against the grant of planning permission. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by powerful enough material considerations.

But an authority can only appropriately strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.

It was clear from the final sentence of paragraph 166 of the planning committee report, that the planning officer, reporting to the Council’s planning committee, weighed benefit against harm without considering whether the benefit was sufficient to outweigh the strong presumption against planning permission being granted.

It would have been open to the Council to conclude that, in spite of the statutory presumption in sections 66 and 72 of the Listed Buildings Act, the policy presumption in Policy SP4 should in this case prevail. Indeed the officer tested the impact on heritage assets by the test of “overriding” harm in Policy SP4(c).

However the reference in that policy to “overriding … conservation … impacts” did not weaken the statutory presumption in sections 66 and 72 when it applies.

Any decision by the Council that Policy SP4 overrode the statutory presumptions had to be made in the knowledge that there were two presumptions at work here, not just one in SP4. In the High Court’s view the Council’s planning committee did not do that.

The court’s decision on this ground alone was sufficient to see the planning permission quashed.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

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Local plan offended NPPF and exceptional test for redefining Green Belt

Where land is in Green Belt any application for planning permission for housing would almost inevitably be refused, as inappropriate in Green Belt unless there are “very special circumstances” that warrant such development there.

In the High Court case of Gallagher Homes Ltd & Anor v Solihull Metropolitan Borough Council [2014] the Claimants had two sites in Solihull, (“the Sites”), which they wished to put housing on. But the Defendant local planning authority (“the Council”) adopted the Solihull Local Plan (“the SLP”) which put the Sites in Green Belt.

The Claimant applied under section 113(3) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”), to establish that the Council had acted unlawfully in adopting the SLP, and its allocation of the Sites to Green Belt, on three grounds which included:

Ground 1: The adopted plan was not supported by a figure for objectively assessed housing need, inconsistently with the requirements to (i) have regard to national policies issued by the Secretary of State (section 19(2)(a) of the 2004 Act), and (ii) to adopt a sound plan (sections 20 and 23 of the 2004 Act).

The Council had sought to justify its housing provision figure of 11,000 by what it described as a “bottom up” approach, i.e. it began with available housing supply. However that clearly fell very far short of the approach advocated and required by the National Planning Policy Framework (“the NPPF”), which involved starting with housing need and requiring justification for any requirement falling short of full and objectively assessed need. The “bottom-up” approach appeared to start with the number of homes that, in the light of relevant policies, could be delivered during the period. That was the wrong way round.

When the case had gone to appeal, the Inspector had been required to assess, fully and objectively, the housing need in the area. He made no attempt to do so. Neither the SLP nor the Inspector provided any full and objective assessment of housing need, as required by the NPPF, before considering constraints on meeting that need.

As was the practice under the pre-NPPF regime, they went straight to policy on figures for the region in a conventional planning balancing exercise, with all material factors in play, and then proceeded to carve up that policy on requirement between the various areas within the region.

That did not comply with the NPPF requirements.

Contrary to the NPPF, for the Inspector, the issue of housing need had not been a driver – in terms of the housing requirement target – it had, at best, been a back-seat passenger. So the Inspector’s approach to the policy requirements of the NPPF in relation to housing provision was neither correct nor lawful.

So the SLP with the modifications that the Inspector endorsed and the Council adopted, was unsound because it was not based on a strategy which sought to meet objectively assessed development requirements nor was it consistent with the NPPF.

Ground 2: The adopted plan paid no regard to the test for revising Green Belt boundaries in national policy, inconsistently with the requirements to have regard to national policies and adopt a sound plan.

The Sites had previously been white, unallocated land. The Court found that the Inspector had taken the wrong approach to the proposed revision of the Green Belt boundary to include them. He had simply balanced the various current policy factors, and, using his planning judgement, concluded it was unlikely that either of the two Sites would be found suitable for development, under current policies.

That, might be so, but what the Inspector had applied fell very far short of the stringent test of “exceptional circumstances” that any revision of the Green Belt boundary must satisfy.

Nothing in this case suggested that any of the assumptions upon which the Green Belt boundary had been set had proved unfounded, nor had anything occurred since the Green Belt boundary was set that might have justified the boundary being redefined.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.