How to be a judge of openness

10 Feb 2020

Planning and Environment

By Harriet Townsend

Green belt policy, despite being the subject of endless debate, is possibly the oldest and most consistent land use policy of them all.

Last week, the Supreme Court tackled its essential quality, openness. In a unanimous judgment written by Lord Carnwath JSC and worth reading in full (encouragingly, it is under 20 pages long) the court reached back into history and pulled out what might be thought a simple route map for decision-makers. I am not so sure.

The case in question is Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council and Dorrington Quarries [2020] UKSC 3, and it concerns an application for planning permission to extend the magnesian limestone quarry at Jackdaw Crag, within the green belt.

The application, first made in 2009, was granted, then quashed on EIA grounds in 2013, and then granted a second time in 2016. It was that 2016 decision which was challenged on four grounds, all relating to the Council’s interpretation and application of green belt policy. It was that challenge which, after failing in the High Court and succeeding in the Court of Appeal, eventually came before the Supreme Court.

The issue of most interest to the court, and for practitioners, is whether or not it was legally necessary (rather than merely permissible) for the Council to take into account the visual impact of the development in order lawfully to assess the proposal’s effect on the openness of the green belt.

It was admitted that, although the Council considered landscape and visual impacts in some detail, it did not take those impacts into account when deciding whether the development preserved the openness of the green belt and was, accordingly, appropriate development on account of paragraph 90 of the NPPF 2012 (paragraph 146 of the NPPF 2019 is in similar terms).

The ratio of the judgment on this issue may be found in paragraphs 39 and 41, and is made up of two parts:

1) “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 39]. This is the route map.
2) “Such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law.” [paragraph 41]. Another case might involve a visual impact “so obviously material” that to fail to address it expressly might be an error of law. For other cases, it is a question of judgment [paragraph 25]. This is where the ground gets potentially boggy.

I offer four other take-away points from the Judgment which may prove useful in practice:

  • The court used Planning Policy Guidance Note 2 (issued in 1995 and amended in 2001) as an aid to the interpretation of the NPPF [paragraphs 11-12]. While the policies of the PPG have been “shortened and recast”, Lord Carnwath JSC did not read the changes as intended to mark a significant change of approach. This means that, for green belt policy at least, if the brevity of the NPPF brings ambiguity, policy documents long since cancelled may be a useful source of clarity.
  • Referring back to his judgment in Hopkins Homes v Suffolk Coastal, Lord Carnwath JSC said the concept of openness is a good example of the sort of broad policy concept that does not lend itself to the same level of legal analysis as that which was under consideration in Tesco v Dundee [paragraph 22].
  • The answer to the question of whether a statute or policy obliges a person to take an issue into account is found in the interpretation of the statute or policy in question. A legal obligation to take a matter into account arises if (a) it is expressly or impliedly identified in the statute or policy as a consideration required to be taken into account; or (b) it is so obviously material as to require “direct consideration” [paragraph 32].
  • The paragraph of the NPPF 2012 under consideration, 90 (now 146), provides a closed list of categories of development which is “not inappropriate” provided openness is preserved and the development does not conflict with the purposes of including land in the Green Belt. This list of potentially appropriate development includes mineral extraction.¬†Lord Carnwath JSC referred with approval to the decisions, both at first instance (Ouseley J) and Court of Appeal (Richards LJ), in Europa Oil and Gas v SSCLG in which an Inspector’s decision was quashed for failing to recognise that minerals development “on a sufficient scale to require planning permission is nevertheless capable in principle of being appropriate development”. [paragraph 28 quoting Richards LJ]. The duration of the development and the reversibility of its effects “are of particular importance to the thinking which makes mineral extraction potentially appropriate in the Green Belt.” [paragraph 27 quoting Ouseley J]. It would seem that these are matters which paragraph 146 of the 2019 NPPF implicitly obliges a decision-maker to take into account when considering whether mineral extraction satisfies the proviso and is therefore appropriate development.

As for its role as a route map or otherwise, the only certain result of the judgment is that, eleven years after submitting its application, Dorrington Quarries has planning permission to extend its quarry at Jackdaw Crag.

At first instance, Hickinbottom J, dismissed the judicial review [2017] EWHC 442 (Admin) but was overturned on appeal by the Court of Appeal led by Lindblom LJ [2018] EWCA Civ 489.

Please find the link to the judgment here.