R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council – Town and country planning – Inappropriate development – Visual impact – Appellant granting planning permission for extension of quarry for extraction of limestone – Respondent landowners applying for judicial review of decision – High Court dismissing application – Court of Appeal allowing appeal and quashing grant of permission– Appellant appealing – Whether appellant required to consider visual impact of proposed development on openness of green belt – Appeal allowed
The respondent companies owned farmland near Jackdaw Crag Quarry, near Tadcaster, a magnesian limestone quarry extending over 25 hectares in an area of green belt. It was owned and operated by the third respondent which applied to the appellant 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 respondents objected to the grant of planning permission but, following completion of a section 106 agreement, the appellant granted permission.
The respondents applied for judicial review of that decision on the grounds that the planning officer’s report, the planning committee and the appellant 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 found no error as the officer’s report was not required to take into account visual impact from the development: [2017] EWHC 442 (Admin); [2017] PLSCS 63. The Court of Appeal disagreed and quashed the planning permission. The court held that the officer’s report was defective at least in failing to make clear that, under para 90 of the NPPF (in its original 2012 form), visual impact was potentially relevant; and that on the officer’s findings visual impact was obviously relevant and therefore a necessary part of the assessment: [2018] EWCA Civ 489; [2018] PLSCS 54. The appellant appealed.
Held: The appeal was allowed.
(1) On a proper reading of the NPPF in its proper historic context visual quality of landscape was not in itself an essential part of openness for which the green belt was protected. Paragraphs 89-90 of the NPPF replaced a fuller statement of policy for “Control of Development” in section 3 of Planning Policy Guidance 2 (PPG2). In the PPG the openness proviso was in terms directed to forms of development other than mineral extraction. By contrast, mineral extraction was not expressly subject to the proviso, but might be regarded as not inappropriate, subject only to “high environmental standards” and the quality of restoration. In the shortened version in the NPPF, those categories of potentially appropriate development had been recast in para 90, and brought together under the same proviso, including the requirement to preserve openness. If that had been intended to mark a significant change of approach, one would have expected it to have been signalled more clearly. The change was explicable as no more than a convenient means of shortening and simplifying the policies without material change.
(2) The concept of “openness” in para 90 of the NPPF was a broad policy concept which was naturally read as referring back to the underlying aim of green belt policy: “to prevent urban sprawl by keeping land permanently open …”. Openness was the counterpart of urban sprawl and was also linked to the purposes to be served by the green belt. As PPG2 made clear, it was not necessarily a statement about the visual qualities of the land, though in some cases it might be an aspect of the planning judgment involved in applying that broad policy concept. Nor did it imply freedom from any form of development. Paragraph 90 showed that some forms of development, including mineral extraction, might in principle be appropriate, and compatible with the concept of openness. A large quarry might not be visually attractive while it lasted, but the minerals could only be extracted where they were found, and the impact was temporary and subject to restoration. Further, as a barrier to urban sprawl, a quarry might be regarded in green belt policy terms as no less effective than a stretch of agricultural land.
The question was whether, under the openness proviso, visual impacts as identified by the inspector, were expressly or impliedly identified in the Town and Country Planning Act 1990 or the policy as considerations required to be taken into account by the authority as a matter of legal obligation, or alternatively whether, on the facts, they were “so obviously material” as to require direct consideration.
(3) In the present case, the issue which had to be addressed was whether the proposed mineral extraction would preserve the openness of the green belt or otherwise conflict with the purposes of including the land within the green belt. Those issues were specifically identified and addressed in the officer’s report. There was no error of law on the face of the report. Paragraph 90 did not expressly refer to visual impact as a necessary part of the analysis, nor was it made so by implication. The matters relevant to openness in any particular case were matters of planning judgment, not law.
The planning officer was entitled to take the view that, in the context of a quarry extension of six hectares, and taking account of other matters, including the spatial separation, they did not in themselves detract from openness in green belt terms. The relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law. There was no error in the weight given by the officer to the fact that the proposed development was an extension of an existing quarry. That again was a matter of planning judgment, not law.
Daniel Kolinsky QC and Hannah Gibbs (instructed by Legal and Democratic Services, North Yorkshire County Council) appeared for the appellant; Peter Village QC, James Strachan QC, Ned Helme and Ruth Keating (instructed by Pinsent Masons LLP, of Leeds) appeared for the first and second respondents; Alison Ogley (instructed by Walker Morris LLP) appeared for the third respondent.
Eileen O’Grady, barrister
