Are open air changes of use always inappropriate development in the Green Belt?

01 Jan 2018

Planning and Environment

The recent decision of the High Court in Fordent Properties Ltd v SSCLG [2013] EWHC 2844 (Admin) has upheld the view of PINS that the NPPF has fundamentally changed Green Belt policy from PPG2, and now makes all open air changes of use automatically inappropriate development (regardless of the specific impacts on openness and Green Belt purposes); simply because open air changes of use are not covered by para 89 of the NPPF (which is limited to built development) and are not listed by name in para 90 of the NPPF.

On this basis, open air changes of use can only come forward in the Green Belt if they can demonstrate very special circumstances to outweigh the harm to the Green Belt by definition and any other harm. This will apply to the use of land for playing all forms of outdoor sport (such as cricket or golf), and the use of land for all forms of active or passive outdoor recreation (such as a country park or other informal recreation). This notwithstanding that under para 89 of the NPPF built development of “appropriate facilities” for outdoor sport and recreation remains a category of potentially appropriate development, subject to its impacts on openness and Green Belt purposes.

The High Court was due to hear a second case on the same point of interpretation of the NPPF on 3 October 2013 (Fall & Regal World Ltd v SSCLG) concerning a change of use of agricultural land to a mixed use of agriculture and the playing of polo on Green Belt land in Windsor & Maidenhead. However, in the wake of the Fordent Properties decision the Secretary of State has accepted that the Inspector’s decision refusing permission for the change of use should be quashed and remitted back for redetermination because the Inspector failed to address the benefits of the change of use in terms of the objectives of para 81 of the NPPF in considering whether there were very special circumstances. The claimants have reserved their position on whether Fordent Properties was correctly decided and whether the change of use was inappropriate development. The High Court has quashed the decision by consent and the arguments will therefore be played out again when the appeal is redetermined.

Michael Bedford acted for the claimants.