Openness impact found properly construed in quarry decision

North Yorkshire County Council properly considered how expansion of a quarry would affect green belt openness, the Supreme Court has held.

The quarry owners had applied for permission to extend mineral working over a further six hectares. A planning officer reviewed the proposal’s potential impact, including its effect on the openness of the green belt. The council accepted the officer’s recommendation that permission should be granted, agreeing that openness would be maintained. The decision was subject to judicial review, with the claimants asserting that the officer’s assessment failed to take visual impact into account.

In the High Court, Mr Justice Hickinbottom upheld the council’s decision, finding that the scheme’s visual impact was not relevant in assessing whether green belt openness was affected. In the Court of Appeal, Lord Justice Lindblom disagreed, concluding that visual impact was potentially relevant under paragraph 90 of the 2012 NPPF. Having regard to the planning officer’s report, he found, visual impact was quite clearly a material consideration and therefore a necessary component in deciding whether openness was reduced. The council’s decision was quashed. 

The Supreme Court held that the visual quality of the landscape was not in itself an essential part of the "openness" for which the green belt was protected. While finding that the definition in paragraph 90 is a broad concept, it noted that the national policy guidance made clear that it is not necessarily a statement about the visual qualities of the land and that paragraph 90 explicitly acknowledged that certain forms of development, including mineral extraction, could be appropriate development in the green belt and compatible with the need to maintain openness.

Lord Carnwath found that the question as to whether the proposed development would preserve openness or otherwise conflict with the purposes of including land within the green belt had been adequately dealt with in the officer’s report. The issue, he opined, was whether, when considering openness, it is necessary to expressly consider visual impacts as a "matter of legal obligation" or whether on the facts of the case they are "so obviously material" as to require direct consideration. Since paragraph 90 does not expressly refer to visual impact, he concluded, the matters relevant to openness in any particular case are a matter of planning judgement rather than law.

The planning officer had not stated that visual impact could never be relevant to openness but had been entitled to conclude that after taking account of various matters, including spatial considerations, openness would not be materially affected, the court observed. While some visual effects had been given weight, in that reference had been made to the restoration of the site, it considered that the relatively limited visual impact fell far short of being a significant material consideration and so there was no error in law. This was a matter of planning judgement, it held. It therefore confirmed the High Court order in dismissing the judicial review.

Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council

Date: 5 February 2020

Ref: [2020] UKSC 3


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