Brownfield land and residential gardens

R (Kinnersley) v Maidstone Borough Council [2023] EWCA Civ 172
22 Feb 2023

In a concise and lucid judgment handed down today in R (Kinnersley) v Maidstone Borough Council [2023] EWCA Civ 172, the Court of Appeal reminds us to pay attention to the natural meaning of words used in planning policy and their purpose or objective within the policy document when read as a whole. The policy in question is development plan policy DM5 in the Maidstone Local Plan, headed “Development on brownfield land’. The word at issue is “site”.

For many years, the policy at all levels has sought to encourage the redevelopment of ‘brownfield’, also called ‘previously developed’ land. But the definition of previously developed land in the NPPF: “Land which is or was occupied by a permanent structure, including the curtilage of the developed land…” excludes explicitly “land in built-up areas such as residential gardens, parks, recreation grounds and allotments”. The Maidstone Local Plan goes further, excluding all residential gardens (whether in urban or rural areas) from the definition of a brownfield site.

Since the decision turns on the particular words used in this policy, it is set out below in full:

  1. Proposals for development on previously developed land (brownfield land) in the Maidstone urban area, rural service centres and larger villages that make effective and efficient use of land and which meet the following criteria will be permitted:

i. The site is not of high environmental value; and

ii. If the proposal is for residential development, the density of new housing proposals reflects the character and appearance of individual localities and is consistent with policy DM12 unless there are justifiable planning reasons for a change in density.

  1. Exceptionally, the residential redevelopment of brownfield sites in the countryside which are not residential gardens and which meet the above criteria will be permitted provided the redevelopment will also result in a significant environmental improvement and the site is, or can reasonably be made, accessible by sustainable modes to Maidstone urban area, a rural service centre or larger village.

It contains no explicit acknowledgement of the possibility that a site might be part brownfield and part not, and there was no assistance with the point from the supporting text.

In granting planning permission for the redevelopment of a site consisting of a barn used as a photography studio and a historic walled garden (the walls of which are curtilage listed) to provide two dwellings, the Council made the mistake of applying the policy’s criteria to the barn only, ignoring the rest of the application site. This error of law led to the decision being quashed.

The second ground of appeal was unsuccessful. It raised the question of whether the Council’s decision was unlawful for the unexplained and inconsistent judgment the case officer offered in the officer’s report as to the contribution made by the current building to the significance of the Grade II listed Hollingbourne House.

The application for planning permission was made in 2018 and granted in 2019, a decision quashed by consent in July 2019. Now the Council will need to redetermine it for a second time.

Cornerstone’s Harriet Townsend (instructed by Matthew McFeeley of Richard Buxton Solicitors) acted for the appellant.

You can read the full judgment here.