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A return to “garden grabbing”? Planning Court to consider whether some private residential gardens are brownfield land.

On Tuesday, the Planning Court will hear arguments in the case of Dartford Borough Council v Secretary of State for Communities and Local Government (CO/4129/2015). Dartford Borough Council are seeking to quash the decision of an Inspector, which found that only residential gardens "in built up areas" are greenfield land, whereas others, in the countryside, are previously developed land (commonly known as "brownfield").

The Secretary of State for Communities and Local Government resists that challenge, on the same reasoning of his Inspector, namely that only residential gardens in "built-up areas" are exempt from the definition of brownfield land, whereas those in the countryside are brownfield. That position is surprising given that the present Secretary of State, the Rt. Hon. Greg Clerk MP, in his role as Planning Minister in 2010, amended PPS3 "Housing" to exclude residential gardens from the definition of brownfield land. The amendment was accompanied by a Written Ministerial Statement to the House of Commons and a letter to all Chief Planning Officers, explaining that local communities now had the power to stop "garden grabbing".

If the Secretary of State is successful, the judgment has the potential to radically alter the use of private residential gardens for development, in an apparent return to "garden grabbing".

Ashley Bowes of Cornerstone Barristers appears for Dartford Borough Council.