1. Green Belt Decision Making
York Members’ Training, September 2018
By Constanze Bell

2. Contents Inappropriate/ appropriate development
Approach to ‘the closed lists’
Openness & preserving openness
VSC
Harm & the balancing exercise

3. Background
Any decision to grant/ refuse must be framed by the 2004 Act. The officer’s report should assist with making that decision.
(s38(6) of the 2004 Act): the decision must be in accordance with the development plan (“DP”) unless material considerations indicate otherwise.

4. Background

6. Preparation Know your local plan policies!
Know the NPPF- always a material consideration!

7. Inappropriate Development
[143] Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. NB Appropriate development is NOT ‘harmful by definition’

8. What is Inappropriate Development?
[145] A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt…. But! There are exceptions…

9. Exceptions to the ‘construction of new buildings’ rule
a) buildings for agriculture and forestry; b) the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it; c) the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

10. Exceptions to the ‘construction of new buildings’ rule
d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces; e) limited infilling in villages; f) limited affordable housing for local community needs under policies set out in the development plan (including policies for rural exception sites); and

11. Exceptions to the ‘construction of new buildings’ rule
g) Limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would: ‒ not have a greater impact on the openness of the Green Belt than the existing development; or ‒ not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority.

12. Exceptions to the ‘construction of new buildings’ rule
So when faced with the construction of a new building in the GB:
It is inappropriate (unless an exception applies)
Does an exception apply? Go through the list!
If it is an exception it is not inappropriate development; it is ‘appropriate development’

13. Exceptions to the ‘construction of new buildings’ rule
TEST Scenario Application: a 92,000 sq m glass house extending partly into a shallow artificial lake used by wintering wildfowl in the GB. Application includes ecological mitigation. Natural England do not object to the proposal.

14. Exceptions to the ‘construction of new buildings’ rule
The Parks Authority was consulted and objected to the application on the basis of the development's impact on the landscape of the regional park and the green belt.

15. Exceptions to the ‘construction of new buildings’ rule
DISCUSSION Is it inappropriate development or not inappropriate development? What does this mean for the decision maker applying policy?

16. Exceptions to the ‘construction of new buildings’ rule
Lee v Valley Regional Park Authority, [2016] EWCA Civ 404
The claimant appealed against the dismissal of its claim for judicial review of the district council's planning permission for a large glasshouse development in the greenbelt. The justices found that agricultural development was not inappropriate in the greenbelt, despite its considerable size (92,000 square metres). They thus rejected all the claimant's grounds.

17. Exceptions to the ‘construction of new buildings’ rule
18 A fundamental principle in national policy for the Green Belt… is that the construction of new buildings in the Green Belt is “inappropriate” development and should not be approved except in “very special circumstances”, unless the proposal is within one of the specified categories of exception in the “closed lists” in paras 89 and 90. There is “no general test that development is appropriate provided it preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt” (see the judgment of Richards LJ in Timmins , at [30] and [31]). Continues…

18. Exceptions to the ‘construction of new buildings’ rule
The distinction between development that is “inappropriate” in the Green Belt and development that is not “inappropriate” (i.e. appropriate) governs the approach a decision-maker must take in determining an application for planning permission. “Inappropriate development” in the Green Belt is development “by definition, harmful” to the Green Belt—harmful because it is there—whereas development in the excepted categories in paras 89 and 90 of the NPPF is not. The difference in approach may be seen in the policy in para.87. It is also apparent in the second sentence of para.88, which amplifies the concept of “very special circumstances” by explaining that these will not exist “unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”.

19. Exceptions to the ‘construction of new buildings’ rule
19 The category of exception in para.89 with which we are concerned, “buildings for agriculture and forestry”, is entirely unqualified. All such buildings are, in principle, appropriate development in the Green Belt, regardless of their effect on the openness of the Green Belt and the purposes of including land in the Green Belt, and regardless of their size and location. Each of the other five categories is subject to some proviso, qualification or limit. Two of them—the second, relating to the “provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries”, and the sixth, relating to the “limited infilling or the … redevelopment of previously developed sites …”—are qualified by reference both to “the openness of the Green Belt” and to the “purposes of including land within it”. The five categories of development specified in para.90 are all subject to the general proviso that “they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt”.

20. A closer look at some of the ‘appropriate’ categories…
(b) the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it;

21. A closer look at some of the ‘appropriate’ categories…
R (oao) Amanda Boot v Elmbridge Borough Council [2017] EWHC 12 (Admin) A new sports facility caused harm to openness of the GB and so was not appropriate development- it was inappropriate. Even where the harm is limited or ‘less than significant’.

22. A closer look at some of the ‘appropriate’ categories…
g) Limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would: ‒ not have a greater impact on the openness of the Green Belt than the existing development; or ‒ not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority.

23. A closer look at some of the ‘appropriate’ categories…
In Turner v SSCLG [2015] EWHC 2728 (Admin) the High Court (Lang J) held that the fourth exception in paragraph 89 (replacement of buildings) does not apply to the replacement of a mobile home with a building since the former is not itself a building. The judge then went on to uphold the planning inspector’s judgment that, on the facts of that case, the sixth exception in paragraph 89 (redevelopment) did not apply either because he had been entitled to find that there would be a greater impact on openness from the redevelopment.

24. Weight
[144] When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

25. Further Exceptions
Para 145 is not the only exceptions list. Para 146 is also concerned with identifying in/appropriate development:

26. Further Exceptions
Certain other forms of development are also not inappropriate in the Green Belt provided they preserve its openness and do not conflict with the purposes of including land within it. These are:

27. Further Exceptions
a) mineral extraction; b) engineering operations; c) local transport infrastructure which can demonstrate a requirement for a Green Belt location; d) the re-use of buildings provided that the buildings are of permanent and substantial construction;

28. Further Exceptions
e) material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds); and f) development brought forward under a Community Right to Build Order or Neighbourhood Development Order.

29. Further Exceptions
[147] When located in the Green Belt, elements of many renewable energy projects will comprise inappropriate development. In such cases developers will need to demonstrate very special circumstances if projects are to proceed. Such very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources.

30. Further Exceptions
Para 146 sets out other forms of development (mineral extraction, engineering operations, etc) that are appropriate provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt.
It is not stated expressly but is implicit that other forms of development apart from those listed are inappropriate.

32. Fundamental Points
NO scope to LPA’s to treat development as appropriate if it does not fall within ‘the closed list’.
NO general test that development is appropriate provided it preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt.

33. What is openness? Spatial aspect: what is where and how big it is
Visual aspect: absence of visual intrusion; relief from unrelenting urban sprawl; openness of aspect is characteristic of countryside.

34. What is openness?
[25] The openness of the Green Belt has a spatial aspect as well as a visual aspect, and the absence of visual intrusion does not in itself mean that there is no impact on the openness of the Green Belt as a result of the location of a new or materially larger building there. But, as observed above, it does not follow that openness of the Green Belt has no visual dimension… Turner v SSCLG [2015] EWHC 2278

35. What is openness?
SSOB v North Yorkshire CC [2018] EWCA Civ 489

36. What is openness?
[46]…the advice given to the committee by the officer was defective… in failing to make clear to the members that, under government planning policy for mineral extraction in the Green Belt… visual impact was a potentially relevant and potentially significant factor in their approach to the effect of the development on the “openness of the Green Belt”, and hence to the important question of whether the proposal before them was for “inappropriate” development in the Green Belt – and, indeed, in implying that the opposite was so. She ought to have advised the members that they were entitled to take visual impact into account when determining that issue...

37. What is openness?
[38] …To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic…. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.

38. What is openness? Absence of development
Beware incremental erosion- the “death by a thousand cuts”
(it may not be possible to demonstrate harm by reason of visual intrusion as a result of an individual – possibly very modest – proposal, the cumulative effect of a number of such proposals, each very modest in itself, could be very damaging to the essential quality of openness of the Green Belt)

39. What is preserving openness?
OED definition: ‘to keep safe from injury, harm or destruction’
the concept of preserving “the openness of the Green Belt” is not, and cannot be, synonymous with the concept of no physical change. Otherwise, the policy would be unworkable
Explored in the SSOB case.

40. What is preserving openness?
[39] The first part of the question posed… whether the development would “preserve” the openness of the Green Belt – cannot mean that a proposal can only be regarded as “not inappropriate in 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)” (Shorter Oxford English Dictionary, 4th edn.). ..

41. What is preserving openness?
… There may be cases in which a proposed development in the Green Belt will have no harmful visual effects on the openness of the Green Belt. Indeed, there may be cases in which development will have no, or no additional, effect on the openness of the Green Belt, either visual or spatial. A good example might be development of the kind envisaged in the fourth category of development referred to in paragraph 90 of the NPPF – “the re-use of buildings provided that the buildings are of permanent and substantial construction”.

42. What is preserving openness?
…But development for “mineral extraction” in the Green Belt, the category of development with which we are concerned, will often have long-lasting visual effects on the openness of the Green Belt, which may be partly or wholly repaired in the restoration phase – or may not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the Green Belt is, classically, a matter of planning judgment.

43. Ok. So it is ‘appropriate development’. Is that the end of the matter
Ok. So it is ‘appropriate development’. Is that the end of the matter? Does it follow that planning permission must be granted?

44. No! The in/appropriate status is the first question and it is an important question but it is not the only question.

45. Turner v SSCLG [2015] EWHC 2278
26 That is not to say, of course, that proposals for the erection of agricultural buildings in the Green Belt will escape other policies in the NPPF, and in the development plan, including policies directed to the visual effects of development and the protection of the countryside or the character of the landscape. Policies of this kind will bear not only on proposals for development that is inappropriate in the Green Belt but also on proposals for development that is appropriate. When such policies are applied, the size and bulk of the building, and its “siting, materials [and] design” (the factors referred to in para.3.15 of PPG2), are likely to be important considerations. Establishing the status of a proposed development—inappropriate in the Green Belt or appropriate—remains only the first step for the decision-maker... …

46. Turner v SSCLG [2015] EWHC 2278
… As para.88 of the NPPF makes plain, inappropriate development can prove to be acceptable if “very special circumstances” are shown to exist, because “the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”…. And development that is not inappropriate, because it is within one of the exceptional categories in paragraphs 89 and 90 and thus not potentially harmful to the Green Belt “by reason of inappropriateness”, may still be unacceptable for other planning reasons. In this case, however, that was not so.

47. Not to be approved except in VERY SPECIAL CIRCUMSTANCES
So what about Inappropriate Development?
Harmful by definition
Not to be approved except in VERY SPECIAL CIRCUMSTANCES

48. Very Special Circumstances
At NPPF [144]: ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

49. Very Special Circumstances

50. What does ‘any other harm’ mean?
Redhill Aerodrome Ltd v SSCLG [2014] EWCA Civ 1386
‘Any other harm’ includes non-greenbelt harm and such harm could be taken into account when determining whether very special circumstances existed to justify the approval of inappropriate development.

51. What are VSC? Essentially a ‘planning judgment’
BUT need to be not only special but very special
It is unlikely, therefore, that VSC would be frequently found to exist, should be a rarity
Also, by extension, unlikely that VSC would exist in a ‘run of the mill’ case
Existence of VSC does not mean development is reclassified as ‘appropriate’

52. Thank you! Any Questions?
Constanze Bell

53. Follow us on:
@kings_chambers
kings-chambers