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

01 Jan 2018

Planning and Environment

Today the Court of Appeal (Gloster and Lewison LJJ) will hear the appeal in Dartford Borough Council v Secretary of State for Communities and Local Government.

Dartford Borough Council are appealing against the judgment of the High Court ([2016] EWH 635 (Admin.) in which Charles George QC (sitting as a Deputy High Court Judge) 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”) which are prioritised for development.

The Secretary of State for Communities and Local Government resists that appeal, on the basis that the exemption for private residential gardens in the NPPF is preceded by the words “land in built up areas …”.

The exemption for private residential gardens from brownfield land followed a Written Ministerial Statement and Letter to Chief Planning Officers in June 2010, which sought to meet public concern about “garden grabbing”.

The debate is essentially between a literal and a purposive interpretation of the NPPF. Dartford argue that reading the definition together with the Ministerial Statement and letter to Chief Planning Officers, the intention is clearly to exclude all private residential gardens from the scope of the definition. To read it otherwise gives rise to peculiar results, with land outside the built-up area, away from services and facilities, prioritised for development whereas land within the built-up area is not.

Ashley Bowes appears for Dartford Borough Council.