Town and country planning – Green belt – Planning permission refused for appellant’s proposed development of residential bungalow on green belt land – Land already occupied by mobile home and vehicle storage yard – First respondent’s inspector regarding development as inappropriate development in green belt not justified by very special circumstances – Whether wrongly interpreting sixth exception in para 89 of National Planning Policy framework – Whether erring in considering visual impact in context of impact on “openness” of green belt – Appeal dismissed
The appellant stationed a mobile home, which he used for residential purposes, on green belt land in Ferndown, Dorset. The remainder of the site was used as a commercial vehicle storage yard. In 2003, a certificate of lawfulness of existing use had been granted in respect of the mobile home; the storage yard use, including the parking of 41 lorries, had also been found to be lawful in a planning appeal decision.
The appellant applied for planning permission to replace the mobile home and storage yard with a three-bedroom residential bungalow and associated residential curtilage. He proposed to retain another area of land adjacent to the site to continue the existing commercial use. Planning permission was refused by the second respondent council and their decision was upheld by the first respondent’s planning inspector on appeal. The inspector considered that the development would constitute inappropriate development in the green belt which was not justified by very special circumstances and that it accordingly failed the meet the requirements set out in paras 87 to 90 of the National Planning Policy Framework (NPPF).
In reaching that conclusion, the inspector rejected the appellant’s contention that the proposed development was not “inappropriate” since it fell within one of the exceptions in para 89. The appellant relied on the sixth exception in para 89, concerning development that “would not have a greater impact on the openness of the Green Belt” than the existing lawful use. The inspector concluded that para 89 did not apply since the development would not constitute “limited infilling” within the meaning of the relevant exception. He also considered that, when looking at the impact of the development on the openness of the green belt, no valid comparison could be made between the existing volume of moveable chattels, such as caravans and vehicles, and permanent operational development such as a dwelling.
The appellant brought proceedings under section 288 of the Town and Country Planning Act 1990 to challenge that decision. He argued that the inspector, when considering the sixth exception in para 89 was applicable, had failed to take into account the relevant fact that the volume of the proposed bungalow would be less than the volume of the mobile home and the permitted number of lorries and that it would consequently have no greater impact on the openness of the green belt than the existing lawful use of the site. He further contended that the inspector had wrongly conflated the concept of openness with the concept of visual impact.
Those contentions were rejected in the court below: see [2015] EWHC 2788 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The concept of “openness” of the green belt was not narrowly limited to a volumetric approach but was open-textured. A number of factors were capable of being relevant when applying the test to the particular facts of a specific case, including factors relevant to how built up the green belt was currently and how built up it would be if redevelopment occurred, and also factors relevant to the visual impact on the aspect of openness that the green belt presented. The openness of the green belt had a spatial aspect as well as a visual aspect, and the absence of visual intrusion did not in itself mean that there was no impact on the openness of the green belt as a result of the location of a new or materially larger building there. However, it did not follow that openness of the green belt had no visual dimension.
Visual impact was implicitly part of the concept of “openness” of the green belt, as a matter of the natural meaning of the language used in para 89 of the NPPF and by reference to the general guidance in paras 79 to 81, which introduced section 9 on the protection of green belt land. With regard to the purposes of the green belt set out in para 80, there was an important visual dimension to checking “the unrestricted sprawl of large built-up areas” and the merging of neighbouring towns, as the name “green belt” itself implied. Greenness was a visual quality and part of the idea of the green belt was that the eye and the spirit should be relieved from the prospect of unrelenting urban sprawl. Openness of aspect was a characteristic quality of the countryside, and “safeguarding the countryside from encroachment” also included preservation of that quality of openness. Likewise, the preservation of “the setting… of historic towns” referred in a material way to their visual setting, for instance when seen from a distance across open fields. The reference in para 81 to planning positively “to retain and enhance landscapes, visual amenity and biodiversity” in the green belt also made it clear that the visual dimension of the green belt was an important part of the point of designating land as green belt. Accordingly, there was no principle that a conclusion on openness could not be reached by reference to visual impact: R (on the application of Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin); [2014] PLSCS 93 not followed.
(2) The inspector had properly addressed himself to the comparative exercise that was called for under the sixth exception in para 89. The inspector had made an evaluative comparative assessment of the existing lawful use and the proposed redevelopment. In making that assessment, he had taken the correct approach to the question of the openness of the green belt. He had made a legitimate comparison of the existing position regarding use of the site with the proposed redevelopment. That was a matter of planning judgment about relative impact on the openness of the green belt. The inspector’s assessment could not be said to be irrational. It was rational and legitimate for him to assess, on the facts of the case, that there was a difference between a permanent physical structure in the form of the proposed bungalow and a shifting body of lorries, which would come and go. Even following the narrow volumetric approach urged by the appellant, the inspector was entitled to make the assessment that the two types of use and their impact on the green belt could not be compared directly in the context of the particular site. He was also entitled to take into account the difference in the visual intrusion on the openness of the green belt.
Michael Rudd (instructed by Hawksley’s Solicitors, of Camberley) appeared for the appellant; Richard Kimblin (instructed by the Government Legal Department) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister