R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v. North Yorkshire County Council - (05 Feb 2020)

Openness is not necessarily a statement about visual qualities of land, nor does it imply freedom from all forms of development

Civil

The short point in present appeal is whether the Appellant county council, as local planning authority, correctly understood the meaning of the word “openness” in the national planning policies applying to mineral working in the Green Belt, as expressed in the National Planning Policy Framework (“NPPF”). The Court of Appeal disagreeing with Hickinbottom J in the High Court, held that, in granting planning permission for the extension of a quarry, the council had been misled by defective advice given by their planning officer.

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 report. There was no error of law on the face of the report. Paragraph 90 does not expressly refer to visual impact as a necessary part of the analysis, nor is it made so by implication. The matters relevant to openness in any particular case are a matter of planning judgement, not law.

On a proper reading of the NPPF in its proper historic context, visual quality of landscape is not in itself an essential part of openness for which the Green Belt is protected. While the text of paragraph 90 of the NPPF has changed from that in Planning Policy Guidance 2: Green Belts (published 1995, amended in 2001), there has been no significant change of approach.

The concept of “openness” in paragraph 90 of the NPPF is a broad policy concept which is the counterpart of urban sprawl and is linked to the purposes to be served by the Green Belt. Openness is not necessarily a statement about the visual qualities of the land, nor does it imply freedom from all forms of development.

The question is, therefore, whether visual impact was a consideration which, as a matter of law or policy, was necessary to be taken into account, or was so obviously material as to require such direct consideration. Whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including land within the Green Belt was specifically identified and addressed in the officer’s report. Paragraph 90 of the NPPF does not expressly or impliedly mandate the consideration of visual impact as part of such an analysis. The officer’s report does not suggest that visual impact can never be relevant to openness.

The relevant paragraphs of the officer’s report addressing openness must be read together. Some visual effects were given weight in the consideration of the restoration of the site. The relatively limited visual impact fell far short of being so obviously material that failure to address it expressly was an error of law, as did the fact that the proposed development was an extension to the quarry. These were matters of planning judgement and not law.

Tags : VISUAL IMPACT OPENNESS PLANNING POLICIES