Town and country planning – Mining – Inappropriate development – Visual impact – Defendants granting planning permission for extension of quarry for extraction of limestone – Claimant landowners applying for judicial review of decision – Whether defendants wrongly failing to consider visual impact of proposed development on openness – Application dismissed
The claimant companies owned farmland in the vicinity of Jackdaw Crag Quarry, a magnesian limestone quarry extending over 25 hectares, to the west of the village of Stutton, about 1.5km to the south west of Tadcaster, in an area of green belt. It was owned and operated by the interested party. The interested party applied to the defendant mineral planning authority for planning permission to extend the operational face of the quarry southwards, to incorporate a six hectare area of adjacent Grade 2 agricultural land (the application site). The proposed extension was about 24% of the existing quarry area. It was proposed that, over a period of seven years, approximately 2m tonnes of limestone be extracted from the existing quarry face in a series of 25m wide and 5m deep strips. The claimants objected to the grant of planning permission but, following completion of a section 106 agreement, the defendants granted permission.
The claimants applied for judicial review of that decision on the ground that the officers’ report, the planning committee and the defendants had misunderstood, and thus misapplied, paragraph 90 of the National Planning Policy Framework (NPPF); and consequently erred in concluding that the development was not inappropriate development in the green belt. In particular, they contended that, in evaluating the impact of the proposed development on openness, the report had failed to consider the visual impact of the development as it was bound to do in accordance with the principles laid down by the Court of Appeal in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466.
Held: The application was dismissed.
(1) Although Sales LJ, in Turner, had observed that the question of visual impact was implicitly part of the concept of openness of the green belt, nowhere had he suggested that a decision-maker was required to take into account visual impact in every green belt case in which openness was an issue. The word “openness” was open-textured and a number of factors were capable of being relevant when it came to applying it to the particular facts. Depending on the specific circumstances of a case, visual impact might be taken into account by a planning decision-maker when considering the impact of a proposed development on the openness of a green belt area. It was not the case, as a matter of law, that visual impact could not be relevant to openness, whatever the facts of the particular case. Flexibility was important because, although the focus of any consideration of openness of green belt land was likely to be on spatial impact, there would be cases where consideration of visual impact in the context of openness would be relevant if not essential: Timmins v Gedling Borough Council [2014] EWHC 654 (Admin) and Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 considered.
(2) Consideration of whether there was any harm to openness of green belt land did not only involve consideration of spatial impact but might also involve consideration of other factors such as the purpose of development, and its duration and remediability. Where development that might otherwise harm openness did not do so because of other factors, there was no harm to openness. Therefore, it did not fall foul of the principle in R (on the application of Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin), that any adverse impact on openness would render development incapable of satisfying the proviso limb that openness was preserved. Although the assessment of openness involved a very different exercise from the conventional planning balance, it did involve an evaluative assessment requiring planning judgment as to whether, on the basis of all relevant factors, a development in respect of which spatial and/or visual impact might in other circumstances lead to an assessment that it did harm to openness, in the particular case did not lead to such harm because of other relevant factors. However, it was not necessary for each of those matters to be specifically considered in every case of development in a green belt area in which openness was in issue. Whether those matters were relevant in a particular case would depend upon the particular circumstances of that case.
(3) Although the proper interpretation of the NPPF was a matter of law for the court to determine, factors such as visual impact, purpose, and degree of permanence and reversibility, were not matters to which, as a matter of law, a planning decision-maker had to have regard in every case in which a proposed development was in a green belt area, or even in every such case in which openness was an issue. They were factors to which the decision-maker might have regard if, on the facts of the particular case, in the exercise of his judgment and discretion, he thought it right to do so. The decision-maker had a margin of appreciation within which to decide which considerations should play a part in his reasoning process. In so deciding, the decision-maker had to be guided by the policy looked at as a whole, including its broad objects; but, once he had made that decision, the court would only interfere, on conventional public law grounds, if he strayed outside that margin: R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037 and R (on the application of Plant) v London Borough of Lambeth [2016] EWHC 3324 (Admin) considered.
(4) The present case was concerned with differential impact, i.e. the potential adverse visual impact over and above the adverse spatial impact. On the facts, it was difficult to see what the potential visual impact of the development would be over and above the spatial impact, which was taken into account. The potential visual impact of the development fell far short of being an obvious material factor in respect of that issue. Accordingly, the report did not err in not taking into consideration any potential visual impact from the development; nor was it deficient in not referring to visual impact in the context of impact on the openness of the green belt. In any event, even if the officers’ report failed to comply with a legal obligation to consider visual impact, had it done so, the conclusion would have been the same.
Peter Village QC and Ned Helme (instructed by Pinsent Mason LLP) appeared for the claimants; Nathalie Lieven QC and Hannah Gibbs (instructed by Legal and Democratic Services, North Yorkshire County Council) appeared for the defendants; Jonathan Easton (instructed by Walker Morris LLP) appeared for the interested party.
Eileen O’Grady, barrister
