How the Supreme Court has made it harder to overturn councils' green belt decisions

A Supreme Court ruling on green belt 'openness' is likely to reduce the scope for legal challenge in areas where decision-makers are exercising planning judgement, say experts, but still leaves uncertainty over the definition of openness.

The Supreme Court (pic: Chiral Jon, Flickr)
The Supreme Court (pic: Chiral Jon, Flickr)

Last week, Lord Carnwath gave a Supreme Court ruling with significant ramifications for development in the green belt. The unanimous ruling, which turned on the question of how to measure green belt "openness", reversed a 2018 Court of Appeal ruling quashing permission for the extension of a quarry in the North Yorkshire green belt. Reinstating the permission, Lord Carnwath’s judgment made clear that officers don’t have to consider the visual impact of a scheme when determining whether or not it reduces green belt openness.

Applicant Darrington Quarries' plans for a six-hectare extension to Jackdaw Crag Quarry, just south of Tadcaster, had been permitted by North Yorkshire County Council in 2016. After a judicial review endorsed the decision, neighbouring landowners including Samuel Smith Old Brewery then successfully appealed, quashing the permission. The Appeal Court judgment ruled that the county council had erred in failing to properly consider the visual impact of the development when determining whether the scheme affected the openness of the green belt.

The National Planning Policy Framework (NPPF) describes the green belt’s "fundamental aim" as to "prevent urban sprawl by keeping land permanently open" but nowhere is 'openness' defined. Most development is, under the NPPF, deemed not appropriate in the green belt, making the question of their impact on openness irrelevant. However, certain limited categories of development, listed in paragraphs 145 and 146 of the NPPF, and of which mineral extraction is one, are appropriate providing that green belt "openness" is preserved. Other potentially appropriate development types are: engineering operations, building re-use, brownfield redevelopment and recreational use.

Landmark Chambers planning barrister Hannah Gibbs, junior counsel for the county council in the case, said the Appeal Court decision had "created confusion" and, if it had stood, could have significantly extended the scope of green belt protection, forcing planning officers to make visual impact assessments of all schemes covered by para 146. However, this latest judgment, by the highest court in the land, states that while decision-makers can consider landscape impacts if the circumstances of the case make it relevant, they do not have to and it is a matter for planning judgement whether they do so or not. "This judgment puts to bed the notion that visual impact has to be considered," said Gibbs. "Now it’s clear that it’s not required to be considered unless clearly material. These are matters of judgement for the decision-maker".

Stuart Natkus, planning director at consultancy Barton Willmore said the judgment effectively returned the sector to the status quo prior to the Appeal Court ruling, while planning barrister Alison Ogley, partner at law firm Walker Morris, which acted for Darrington Quarries, said applicants would be breathing a huge sigh of relief. "We could have been in the territory where every mineral extraction site in England would have to demonstrate special circumstances in order to proceed, despite paragraph 146 of the NPPF," she said.

Experts said the judgment was primarily a boost for planning decision-makers’ ability to make decisions without fear of legal challenge. Lord Carnwath used the judgment to warn against the "danger of "over-legalisation"" of planning in relation to broad "open-textured" policy concepts such as green belt openness.

Bob Bennett, chair of the development management network at the Planning Officers’ Society, which represents public sector planners, said: "The interpretation of this should be that determining openness is a matter for the local authority, at the discretion of the decision-maker." Landmark Chambers’ Gibbs said: "If I was a local authority, I’d have more confidence following this that my decisions will be supported by the courts. If I were advising clients, I’d say that the tide is turning slightly on this type of challenge."

The flip side to this endorsement of decision-making discretion, is that the ruling puts the interpretation of "openness" largely back on to planners. While the judgment does state that openness "is the counterpart of urban sprawl" and that visual qualities may be an aspect of this, it doesn’t set out a specific definition.

Some say this means the situation remains unclear. Fergus Charlton, legal director at law firm TLT, said: "I was hoping we’d see a bit more clarity on what openness is. It hasn’t really done that." Likewise, Barton Willmore’s Natkus said: "This does make everything very site specific. Some guidance around this issue would help."

TLT’s Charlton said this uncertainty meant the outcome may, in fact, be that local authorities decide to "screen" for the visual impact of a scheme in future, in order to determine whether it is so material to any specific case that it needs to be fully assessed. "I’ve already heard from a landscape assessor who’s asking about whether this is now going to happen," he said.

For development more broadly, including residential, however, the judgment is only relevant to those categories of development listed in the NPPF as being in principle appropriate in the green belt, as long as "openness" is not impinged. Charlton said: "For general housing schemes, the situation is unchanged – it’s only schemes that require that assessment of openness [that are affected]."

Other recent landmark judgments on green belt 'openness'

Timmins vs Gedling Borough Council, March 2014

Plans for a cemetery and crematorium in the Nottinghamshire green belt ?went ahead after the High Court's Mr Justice Green said not only was openness distinct from visual impact, but that it was "wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact".

Turner v Secretary of State for Communities and Local Government, May 2016

Plans to replace a mobile home with a permanent bungalow that would appear as a dominant landscape feature in the south east Dorset green belt were turned down after Lord Justice Sales in the Court of Appeal ruled that "openness" was not a "narrowly limited" concept referring solely to the presence of development, and that visual impact could be relevant.

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