Town and country planning – Green belt – Inappropriate development – Inspector appointed by defendant secretary of state dismissing claimant’s appeal against refusal of retrospective planning permission for works carried out at petrol station within green belt – Claimant applying for order quashing inspector’s decision – Whether inspector misinterpreting para 89 of national planning policy framework – Whether works falling within exception to policy that construction of new buildings in green belt inappropriate – Application granted
The claimant was a company which owned and operated a chain of petrol filling stations that commonly incorporated food outlets and shops selling convenience goods. The claimant applied for retrospective planning permission for works carried out to a petrol filling station situated within the green belt, on a site at the junction of the north-south route between Chester and the Wirral and the east-west route between Liverpool and North Wales, which included the extension of an existing shop on the site and creation of a storage area. The second defendant local planning authority refused the application on the basis that it constituted inappropriate development within the green belt.
Paragraph 89 of the National Policy Planning Framework (NPPF) provided that a local planning authority should regard the construction of new buildings as inappropriate in green belt. The sixth bullet point of para 89 provided an exception in respect of “… 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 the purpose of including land within it than the existing development”.
The claimant appealed to the first defendant secretary of state under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the first defendant interpreted the exception in para 89 to mean that openness was an essential characteristic of the green belt, which in turn meant an absence of building and development. Whether harm was caused to openness depended on a variety of factors such as the scale of the development, its locational context and its spatial and/or visual implications. On that interpretation, the inspector concluded that the works, although constituting limited infilling of previously developed land, did not satisfy the exception. The appeal was dismissed.
The claimant applied to quash the inspector’s decision under section 288 of the 1990 Act. The second defendant did not contest the claim and was not represented at the hearing.
Held: The application was granted.
(1) There were two limbs to the exception in bullet point 6 of para 89 which the development had to pass to fall within the exception to inappropriateness: (i) that the infilling was not to have a greater impact on the openness of the green belt than the existing development; and (ii) that the infilling was not to conflict more with the purpose of including land within the green belt than the existing development. They were distinct elements and the inspector was right to treat them separately and on the basis that to fall within the exception the development had to meet both tests. “Openness” was not a defined term but it was clear from the context that it was openness of the green belt that had to be considered not the site as such. That had to be the case because any infill would, almost by definition, have an impact on the openness of a site. In the case of infill there would necessarily be a change to the scope of the build. So, for there to be a greater impact there had to be something more. Whether or not there was a greater impact was a matter of judgment.
Where there was no existing development, consideration had to be given to whether the development preserved the openness of the green belt. Where there was some existing development, the openness of the green belt had not been wholly preserved and there would necessarily have been some impact on the openness of the green belt already. Therefore, it made sense to consider whether there would be a greater impact from the contemplated limited infilling. Asking the question whether there was any greater harm was one way of assessing the impact. Whether the openness of the green belt was preserved, or conversely harmed, was not simply a question of whether something, which by definition had a spatial impact, was to be built.
Further, the question of whether the openness of the green belt was preserved would generally involve an assessment of the visual or perceived impact. That was a matter of planning judgment but it was a matter that needed to be considered. Where the issue of openness of the green belt arose, the visual impact of a development would generally require consideration, whether there was likely to be a visual impact or there was no visual impact. If there was no visual impact that was also a material consideration because it was less likely that the openness of the green belt would be harmed. The policy required the decision maker to consider and make an assessment, under bullet point 6, of whether the openness of the green belt was impacted or harmed by the proposals to a greater extent than that openness had already been impacted. That was an open-textured assessment and there was no check list to be gone through but, where openness of the green belt was in issue, visual impact, as well as spatial impact, required consideration, subject to a margin of appreciation. In the present case, the inspector treated any change as having a greater impact on the openness of the green belt, rather than considering the impact or harm, if any, wrought by the change.
Although the inspector appeared to set out the right test, she then either went wrong in her interpretation of the policy or failed to apply the policy: Accordingly, the inspector’s decision would be quashed: Turner v Secretary of State of Communities and Local Government [2016] EWCA Civ 466; [2016] EGLR 53 and Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2018] EWCA (Civ) 489; [2018] PLSCS 54 considered.
Kevin Leigh (instructed by Shoosmiths LLP) appeared for the claimant; Jack Parker (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
