Extensions in the Green Belt and material changes of use – what’s the proper approach?

16 Apr 2021

Planning and Environment

The Bluebell Cemetery appeal raised an important question about the proper interpretation of Green Belt policy – and its outcome, while far from straightforward, is likely to lead to an inconsistent treatment of development proposals in the Green Belt. The decision has been helpfully summarised by Jonathan Clay [HERE]. This piece examines the competing arguments and the wider implications of the decision.


The legal question arose in the context of a single storey extension to an existing chapel building to provide for a crematorium on site. The focus, therefore, was on the interpretation of the paragraph 145(c) exception to inappropriate development in the Green Belt, namely, “the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building”.


The Appellant’s case was that provided the terms of paragraph 145(c) were met, that was the end of the matter and there was no requirement to consider the appropriateness of any material change of use of land brought about by that extension. The Council contended that in such cases it was also necessary to assess the proposals against paragraph 146(e), i.e. whether the material change in the use of land preserved the openness of the Green Belt and did not conflict with the purposes of including land within it. The Inspector agreed with the Appellant, essentially noting the absence of any reference to change of use in paragraph 145(c), as well as the absence of any express requirement to gauge the impact on openness.


Competing arguments and implications


The issue is far from straightforward, and as the Inspector noted, none of the cases to which she was referred directly related to paragraph 145(c) or its predecessor, paragraph 89(c) of the 2012 NPPF.


Nonetheless, there are cogent arguments that lend support to the alternative view which was argued on behalf of the Council. Starting from first principles, the focus must be on the plain language of the words used, read in their proper context. The proper context will include the specific objectives to which the policy statement in question is directed (see for e.g. Hopkins Homes Ltd v SSCLG [2017] 1 WLR 1865, at [72]).


In this case, the opening words of paragraph 145 (“the construction of new buildings”), when read objectively, make it clear that the exceptions listed therein are concerned solely with the erection of buildings i.e. operational development. Within that list, sub-paragraph (c) refers again to the “extension or alteration of a building”. The material change of use of buildings is not therefore embraced by this sub-paragraph on its plain language, and one needs to consider that separate question by reference to paragraph 146(e).


The next step is to consider whether the provision, when read in its proper context, yields the same result. Here, the overall context involves a consideration of how the exception would fit with the other exceptions in paragraphs 145-146 and how it would best meet the overarching policy objectives. The following factors are therefore relevant and support the plain language interpretation:


  • Where paragraph 145 intends to go beyond regulating the construction of buildings, it does so explicitly: see paragraph 145(b), which is concerned with the provision of appropriate facilities for outdoor sport etc. It is perhaps particularly noteworthy that the words incorporating the change of use were brought about by the revised NPPF to address the decision in R (Timmins) v Gedling BC [2015] EWCA Civ 10. The draftsperson clearly re-considered the list of exceptions, but only sought to vary that sub-paragraph.


  • There is a discrepancy between subparagraphs (c) and (d) in that paragraph 145(d), concerned with replacement buildings, explicitly restricts the new building to the same use as the original building. However, it is possible to explain this discrepancy. First, in general terms, a new building is more likely to bring with it a material change of use; that is not ordinarily the case with mere extensions or alterations (especially bearing in mind such extensions/alterations must be proportionate to the original size). Second, the discrepancy may also be explained by the application of s.75(3) TCPA 1990, pursuant to which the grant of permission for the erection of a building is to be construed as including permission to use the building for which it was designed. In the absence of the restrictive words in paragraph 145 (d), the operation of s.75(3) would mean that a replacement building could be erected in a different use and permission for the material change of use would follow. By contrast, the application of s.75(3) in cases involving mere extensions or alterations has been doubted: see for e.g., R (Peel Land & Property Investments Ltd) v Hyndburn BC [2013] EWCA Civ 1690.


  • Perhaps most importantly, to allow the introduction of a new use of a building, without any regard for example to the impact on openness, would quite clearly subvert the Green Belt policy objectives. It would also be entirely inconsistent with the carefully crafted exemptions in paragraphs 145(d) for new buildings and 146(e) for material changes in the use of land.


However, the practical effect of the decision leads to exactly that inconsistency. As things stand, while replacement buildings in the Green Belt must remain in the same use, the extension of a building could in fact introduce a new use of the land, including an inappropriate use and one which does not preserve the openness of the Green Belt and conflicts with the purposes of including land within it.

The outcome of the Bluebell Cemetery appeal did not turn on the policy interpretation, with the Inspector explicitly assessing the proposal against paragraph 146(e) in the event that she was wrong on interpretation. However, this is unlikely to be the last we hear of the matter; the question has already cropped up in other appeals. Given the real danger of inconsistent treatment of development proposals in the Green Belt, it is surely only a matter of time before the issue will end up in the courts.


Jonathan Clay appeared for the Appellant and Ruchi Parekh for the Local Planning Authority in the Bluebell Cemetery appeal.


The Inspector’s decision letter (APP/G2245/W/19/3243177) can be found HERE.