Town and country planning – Green belt – Development – Respondents granting planning permission for extension to plant nursery by erection of large glasshouse – Proper application of para 88 of NPPF – Whether respondents erring in failing to give substantial weight to harm to openness of green belt – Whether misapplying other NPPF policies on sustainable development – Whether failing to consider whether “appropriate assessment” of ecological effects of development required – Appeal dismissed
In 2014, the respondent council granted planning permission to the interested party for an extension to a plant nursery in Nazeing, Essex, by the construction of a very large glasshouse with an area of 92,000m² for growing tomatoes and peppers.
The nursery site comprised 18ha of farmland and restored mineral workings within the metropolitan green belt in the Lee Valley Regional Park, less than 1km from the Lee Valley special protection area (SPA) and Ramsar site. The proposed glasshouse was to extend partly into a shallow artificial lake at one end of the site which was used by wintering wildfowl, including the gadwall and the shoveler; however, ecological mitigation was proposed in the form of a new pond providing a net increase in habitat for those species. Natural England did not object to the proposal.
In granting permission, the respondents took into account the report of their planning officer, which indicated that the proposed development, being a building required for horticulture, was appropriate development in the green belt under both national policy and the local development plan and therefore did not have to be justified by very special circumstances. The officer advised that development plan policies required the likely visual, amenity and environmental impact of the proposed development to be taken into account. After weighing the benefits for the local economy of the proposed “sustainable economic development” against its conflict with the development plan and the harm to the regional park and the landscape, she concluded that planning permission should be granted.
The appellant applied to quash the planning permission, contending that the respondents had: (i) misapplied relevant policies on the “openness” of the green belt, including the requirement in para 88 of the NPPF to ensure that substantial weight was given to any harm to the green belt; (ii) misunderstood and misapplied NPPF policy regarding the “presumption in favour of sustainable development”; and (iii) failed to consider whether it was necessary to undertake an “appropriate assessment” of the implications of the development for the Lee Valley SPA, in breach of their duty under article 6 of Council Directive 92/43/EEC (the Habitats Directive) and regulation 61 of the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations). The claim was dismissed in the court below: see [2015] EWHC 1471 (Admin). The appellant appealed.
Held: The claim was dismissed.
(1) Paragraph 88 of the NPPF should be construed objectively in its full context, and should not be read in isolation from the policies that sat alongside it. The polices that came before and after it, including para 87 and 89, were concerned with “inappropriate” development in the green belt, which was not to be approved except in very special circumstances The proposed glasshouse was not inappropriate development since, as a building for agriculture, it fell within one of the exceptions made in para 89 from the general rule that the construction of new buildings would be inappropriate development in the green belt. A decision-maker dealing with an application for planning permission for development in the green belt had to give “substantial weight” to “any harm to the green belt” that was properly regarded as such when the policies in paras 79 to 92 were read as a whole.
It was apparent that “buildings for agriculture and forestry”, and other development that was not “inappropriate” in the green belt, were not to be regarded as harmful either to the openness of the green belt or to the purposes of including land in the green belt. Development that was not, in principle, “inappropriate” in the green belt was to be regarded as appropriate in the green belt. Reading the policies in paras 79 to 92 in context, development that was appropriate in the green belt was regarded as not inimical to the fundamental aim” of green belt policy, namely “to prevent urban sprawl by keeping land permanently open”, to the essential characteristics of green belts, namely “their openness and their permanence” or to the five purposes served by the green belt: see paras 79 and 80. That was the real significance of a development being appropriate in the green belt, and the reason why it did not have to be justified by “very special circumstances”.
Accordingly, the distinction between development that was “inappropriate” in the green belt and development that was not inappropriate governed the approach that a decision-maker had to take in determining an application for planning permission. Inappropriate development was by definition harmful to the green belt, whereas development in the excepted categories in paras 89 and 90 of the NPPF was not.
Although most of the categories of exception set out in para 89 were subject to some sort of proviso, the exception for “buildings for agriculture and forestry” was entirely unqualified. All such buildings were, in principle, appropriate development in the green belt, regardless of their effect on the openness of the green belt and the purposes of including land in the green belt, and regardless of their size and location. That was not a matter of planning judgment for the decision-maker but was inherent in the policy. Consistently with that policy, para 88 of the NPPF should not be read as requiring the decision-maker to give substantial weight to the effect that a proposed agricultural building would have on the openness of the green belt and on the purposes of including land within the green belt. Once a particular development was found to be, in principle, appropriate, the question of the impact of the building on openness was no longer an issue: Europa Oil & Gas Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2643 (Admin); [2013] PLSCS 212 and [2014] EWCA Civ 825; [2014] PLSCS 181 applied.
Establishing the status of a proposed development as either inappropriate or appropriate in the green belt was only the first step for the decision-maker. Proposals for the erection of agricultural buildings in the green belt would not escape other policies in the NPPF, and in the development plan, including policies directed to the visual effects of development and the protection of the countryside or the character of the landscape. Development that was appropriate would still be subject to those other policies, which, when applied, would mean that the size and bulk of the building, and its siting, material and design, were likely to be important considerations. In the instant case, it was apparent from the planning officer’s report that she had had correctly understood both NPPF and local plan policy for development in the green belt and had applied the relevant policies lawfully.
(2) The planning officer’s report showed how she had formed her crucial planning judgment that, despite the proposal’s conflict with the development plan in certain respects and the harm that the development would cause, its benefits as “sustainable economic development” were sufficient to justify the grant of planning permission. That did not involve any misapplication of the presumption in favour of sustainable development in the NPPF.
(3) The respondents had lawfully discharged their duties under the Habitats Directive and the Habitats Regulations and had properly concluded that there was no need for an “appropriate assessment” to be undertaken. Their planning officer had considered the possible effects on biodiversity in her report. The respondents had not delegated the decision to Natural England, or allowed Natural England to dictate to them what the decision should be without considering the matter for themselves. The respondents had been entitled to conclude that the development, with the proposed mitigation measures in place, was not likely to have a significant effect on a European site, such that no appropriate assessment was required.
Gregory Jones QC and David Graham (instructed by the legal department of Lee Valley Regional Park Authority) appeared for the appellant; Megan Thomas (instructed by the legal department of Epping Forest District Council) appeared for the respondents; Peter Village QC and Ned Helme (instructed by Duffield Harrison LLP) appeared for the interested party.
Sally Dobson, barrister
