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Court of Appeal fails to clarify green belt policy

In the eagerly awaited judgment in the case of Timmins and Lymn v Gedling Borough Council [2015] EWCA Civ 10, the Court of Appeal has partly clarified the interpretation of chapter 9 of the NPPF (dealing with the Green Belt), but left the door open to further litigation on aspects of the policy.
The case concerned two applications by competing developers for crematoria facilities. One of the applications made provision for a crematorium and cemetery, the other only made provision for a crematorium. The case turned on the manner in which the local authority's officers, and planning committee, had dealt with the cemetery element in the context of the NPPF, and in particular whether a cemetery was to be regarded as appropriate development under paragraph 89 NPPF.

The Court of Appeal agreed with the conclusion reached by the High Court, which was that paragraph 89 NPPF is concerned only with new buildings in the Green Belt, and not changes of use (such as a change from agriculture to a cemetery). It was held that para 89 contains a closed list of new buildings which can be considered to be appropriate, by way of exceptions to the general rule: judgement at paragraphs 30 (Richards LJ) and 43 (Mitting LJ).

However, the Court was divided as to the interpretation of paragraph 90 NPPF, which deals with "other forms of development [which are] also not inappropriate". For Richards LJ, paragraph 90 NPF (like paragraph 89) contains a closed lists of cases in which development might be appropriate in the Green Belt: "I do not think that the NPPF gives any scope to local planning authorities to treat development as appropriate if it does not fall within paragraph 89 or paragraph 90": judgment para 31.

However, Mitting LJ pointed out that the double negative used in paragraph 90 NPPF ("certain other forms of development are also not inappropriate in Green Belt") bore the same meaning when phrased positively ("certain other forms of development may be appropriate in Green Belt"). In his view, if the draftsman had intended paragraph 90 to be treated as a closed list, he would have used the same phrasing as had been used in paragraph 89: judgment para 43.

In this way paragraph 90 could be reconciled with paragraph 81 NPPF, which requires LPAs to plan to enhance the beneficial use of the green belt, including by providing opportunities for outdoor sport and recreation and improving damaged and derelict land. In the view of Mitting LJ, fulfilment of those aims "will normally involve a change of use amounting to development for which planning consent is required". This would be unlikely to involve 'very special circumstances' and therefore, if paragraph 90 was to be treated as a closed list, the only means by which LPAs could fulfil the obligations imposed upon them by para 81 would be to water down the stringent test set out in paragraph 88, (requiring harm by reason of inappropriateness, and any other harm, to be clearly outweighed by other considerations): judgment para 42. In the view of Mitting LJ: "paragraph 90 must not be read so as to inhibit or discourage the fulfilment of the local planning authority's positive obligations under paragraph 81".

Unfortunately, Tomlinson LJ considered that it was unnecessary to determine the proper construction of paragraph 90 NPPF since the parties were agreed that, since the obligation cast upon local authorities by paragraph 81 of the NPPF does not extend to the provision of cemeteries, paragraph 81 did not assist the appellants in their argument as to the proper construction of paragraph 90.

Where does this leave practitioners? The judgment certainly clarifies the interpretation of paragraph 89, but it leaves considerable uncertainty about the construction of paragraph 90, which will have to be resolved in a later case.