In R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin), Supperstone J quashed planning permission granted by a local authority for its own sports hub on contaminated metropolitan green belt land used as informal open space and scrub. Its adopted green belt policy required such applications to be “sited and designed to minimise the impact on the openness of the green belt”. Under paragraph 89 of the National Planning Policy Framework, any new buildings in the green belt would be ‘inappropriate’ (and require a Very Special Circumstances justification) other than limited exceptions. One exception is the “provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as [they] preserve the openness of the green belt and do[..] not conflict with the purposes of including land within it“.
The judge accepted the claimant’s case that the planning committee misinterpreted NPPF89. The scheme was considered to satisfy four of the five NPPF green belt purposes, but not the “safeguarding the countryside from encroachment” (introducing a new recreational use on part of the site). It applied NPPF89 on the basis that the proposed buildings and structures (including a pavilion, floodlights, fencing and car park) would be appropriate green belt development “provided that” they preserve the openness of the green belt and do not conflict with green belt purposes. Having found “limited” and “insignificant” impacts on openness from the buildings and structures, it then simply weighed them in the balance against the scheme benefits.
The judge held that it had granted permission for development affecting openness without considering whether there were very special circumstances that would justify it. Harm to openness depends, as a matter of policy, on the nature of the new buildings, with established exceptions in NPPF89 for certain uses (following R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404). For buildings not within those exceptions, the overarching Very Special Circumstances test provides a further exception (Europa Oil and Gas v Secretary of State for Communities and Local Government [2013] EWHC 2643 (Admin). There was therefore no absurdity in treating any adverse impact on openness as an inevitable breach of NPPF89. Two similar buildings could, however, have differing effects on openness depending on the nature of their use.
The judgment is a reminder that while decision-makers cannot choose to calibrate inappropriateness by the scale of harm to openness, they can nonetheless differentiate between the effect on openness of development depending on its purpose. Where openness is affected, they can still focus their discretion on the factors weighing in as Very Special Circumstances to outweigh both in-principle inappropriateness and other green belt harm.
Roy Pinnock is a partner in the planning and public law team at Dentons
