Where is the harm? Preserving the openness of the Green Belt

11 Jul 2018

Planning and Environment, Public Law and Judicial Review

In Euro Garages Ltd v SSCLG [2018] EWHC 1753 (Admin), the Court has affirmed the importance of decision-makers analysing what is the harm to the openness of the Green Belt when applying Green Belt exception policies in the NPPF.

Paragraphs 89 and 90 of the NPPF (as then in force) provide that certain types of development will not be “inappropriate” provided that they “preserve” the openness of the Green Belt and do not conflict with the purpose of including land within it.

Such development includes, for example, facilities for outdoor sport, outdoor recreation, cemeteries, limited infilling (so long as it would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development), mineral extraction, engineering operations and local transport infrastructure with a requirement for a Green Belt location, among others.

In Samuel Smith Old Brewery (Tadcaster) v North Yorkshire CC [2018] EWCA (Civ) 489, the Court of Appeal held that “whether the development would ‘preserve’ the openness of the Green Belt – cannot mean that a proposal can only be regarded as ‘not inappropriate in the Green Belt’ if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb ‘preserve’ in the sense of ‘keep […] safe from harm – rather than ‘maintain (a state of things)'” (see paragraph 39).

The Court in this case quashed the decision of a Planning Inspector to refuse planning permission for infill development at a petrol station because the Inspector failed to consider what harm the development would cause to the openness of the Green Belt beyond the fact that the development would have a degree of spatial impact by reason of its being built.

Jack Parker acted for the Secretary of State.

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