Town and country planning – Inappropriate development – Visual impact – Respondent granting planning permission for extension of quarry for extraction of limestone – Appellant landowners applying for judicial review of decision – Application dismissed – Appellants appealing – Whether respondent wrongly failing to consider visual impact of proposed development on openness of the green belt – Appeal allowed
The appellant companies owned farmland near 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 which applied to the respondent 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 appellants objected to the grant of planning permission but, following completion of a section 106 agreement, the respondent granted permission.
The appellants applied for judicial review of that decision on the ground that the officer’s report, the planning committee and the respondent had misunderstood, and thus misapplied, para 90 of the National Planning Policy Framework (NPPF); and consequently erred in concluding that the development was not inappropriate development in the green belt. The High Court dismissed the application, holding that the officer was not required to take visual impact into account: see [2017] EWHC 442 (Admin); [2017] PLSCS 63.
The appellants appealed contending that, amongst other things, in assessing the likely effect of the proposed development on the “openness” of the green belt, the planning committee erred in failing to consider its visual impact on the green belt.
Held: The appeal was allowed.
(1) Statements of NPPF policy had to be interpreted objectively in accordance with the language used, read always in its proper context, and not as if they were statutory or contractual provisions. This case was concerned with the preservation of “the openness of the green belt” which was not defined in para 89 or 90 or elsewhere in the NPPF. However, the concept of “openness” had to take its meaning from the specific context in which it fell to be applied under the policies in those two paragraphs. As a general proposition, the policy in para 90 made it necessary to consider whether the effect of a particular development on the openness of the green belt could properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question, without taking into account the effects it would have on the openness of the green belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the green belt would be artificial and unrealistic. The policy in para 90 did not do that. A realistic assessment would often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there were likely to be visual as well as spatial effects on the openness of the green belt and, if so, whether those effects were likely to be harmful or benign, would be for the decision-maker to judge. But the need for those judgments to be exercised was inherent in the policy: Turner v Secretary of State for Communities and Local Government [2016] EGLR 53 followed.
(2) Development for “mineral extraction” in the green belt would often have long-lasting visual effects on the openness of the green belt, which might be partly or wholly repaired in the restoration phase, or not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the green belt was a matter of planning judgment. Therefore, when the development under consideration was within one of the five categories in para 90 and was likely to have visual effects within the green belt, the policy implicitly required the decision-maker to consider how those visual effects bore on the question of whether the development would “preserve the openness of the green belt”. Where that planning judgment was not exercised by the decision-maker, effect would not be given to the policy. That would amount to a misunderstanding of the policy, and thus its misapplication, which was a failure to have regard to a material consideration, and an error of law.
Such an error occurred in the present case. Although the officer’s assessment of the development’s likely effects on the openness of the green belt gave some consideration to spatial impact, nothing was said about the visual impact of the quarry extension. That was a significant omission which betrayed a misunderstanding of the policy in para 90. The officer did not say, in so many words, that the development was “not inappropriate” in the green belt, but that was plainly what she concluded. There was no consideration of “very special circumstances” to justify development that was “inappropriate”. Accordingly, the advice given to the committee by the officer was defective, at least in failing to make clear to the members that, under government planning policy for mineral extraction in the green belt in para 90, visual impact was a potentially relevant and significant factor in their approach to the effect of the development on the “openness of the green belt”, and hence to the important question of whether the proposal before them was for “inappropriate” development in the green belt.
(3) The question on which the respondent erred in law was pivotal in its decision. One could not be confident at all that if the effect of the development on the “openness of the green belt” had been properly considered in the officer’s report, the committee’s decision would likely have been the same as it was. The officer’s report contained no alternative assessment on the basis that, contrary to her view, the proposal was “inappropriate” development, and no advice to the members on the question of “very special circumstances” if that were so. In those circumstances, it would be wrong for the court to exercise its discretion to save the planning permission.
Peter Village QC and Ned Helme (instructed by Pinsent Masons LLP) appeared for the appellants; Nathalie Lieven QC and Hannah Gibbs (instructed by Legal and Democratic Services, North Yorkshire County Council) appeared for the first respondent; Jonathan Easton (instructed by Walker Morris LLP) appeared for the second respondent.
