Paragraph 89 of the NPPF provides that a local planning authority (“LPA”) should regard the construction of new buildings as inappropriate in the green belt, subject to a number of express exceptions. Some are unqualified in nature; others are qualified. One of the qualified exceptions reads as follows: “[The] provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness the green belt and does not conflict with the purposes of including land within it.”
Paragraph 90 then sets out other forms of development, such as “mineral extraction” and “engineering operations”, that are also not inappropriate in the green belt but all of those other forms of development must preserve the openness of the green belt, and must not conflict with the purposes of including land within it.
The Court of Appeal in R (on the application of Timmins) v Gedling Borough Council [2015] EWCA Civ 10; [2015] PLSCS 21 – while acknowledging that the drafting of paragraphs 89 and 90 of the NPPF could have been clearer – has given guidance on their meaning. In short, the paragraphs are to be read as “closed lists”, and by implication they give no scope to a LPA to treat development as appropriate if it does not fall within one or the other. Such policy statements were to be interpreted objectively, in accordance with the language used read in its proper context.
In that case, the court at first instance had quashed planning permission granted by the LPA for a cemetery and crematorium on green belt land, holding that the LPA had erred by misinterpreting paragraphs 89 and 90 in regarding a cemetery as appropriate development in the green belt. The judge stated any development in the green belt was prima facie inappropriate, save in the case of those listed in paragraphs 89 and 90, and could only be justified by reference to “very special circumstances”. Furthermore, paragraph 89 did not include the provision of a cemetery; merely the construction of new buildings that provided facilities to serve one.
The Court of Appeal upheld the decision at first instance. The appeal judges pointed out that the exception in paragraph 89 on which the LPA apparently relied covered the construction of a building as an appropriate facility for an existing cemetery, but it did not cover a material change of use of land so as to create a new cemetery.
John Martin