R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) (Respondents) v North Yorkshire County Council (Appellant) – judgment given on the 5th February 2020. It is important to note that this judgment was directly concerned with the policies in the NPPF (in its original 2012 version). The current version of the NPPF is dated 2019. At CarneySweeney we note that there is no difference in wording between the 2012 and 2019 versions related to Protecting Green Belt Land and the five purposes of Green Belt Land. The wording also remains unchanged for those of us that previously thumbed paper copies of PPG 2. There have been changes elsewhere with the current NPPF's precise wording of Green Belt framework policies but the stability on the wording of the core elements of Green Belt does allow us to apply this judgment in our future consideration of the appropriate planning balance in our final planning judgement of any proposal.
It is not surprising that the judgment establishes that “openness” and visual impact are different things; and , it offers us insight into how visual effects may be taken into account. The court's decision confirms that openness is not a matter of legal principle but of planning judgement. The issue comes down to whether a proposal preserves the openness of the Green Belt or otherwise conflicts with the purposes of including the land within the Green Belt. It confirms that a straight quantitative approach is too simplistic. It accepts that there can be a visual impact from new development. That is to say, we do not need to demonstrate an absence of built development. The judgment accepts that limited visual impact can be acceptable, albeit as part of a wider qualitative argument.
The judgment also looks at those forms of development that might not be inappropriate provided they preserve openness. There is an additional item added since 2012 (we have underlined the 2019 addition)
“Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt.
- mineral extraction;
- engineering operations;
- local transport infrastructure which can demonstrate a requirement for a Green Belt location;
- the re-use of buildings provided that the buildings are of permanent and substantial construction; and
- material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds); and
- development brought forward under a Community Right to Build Order or Neighbourhood Development Order.”
Openness remains complicated and a matter of detail. Effects on our landscape and the resulting visual impacts remain relevant but they are not the yardstick by which we should judge the quantitative and qualitative effect on the openness of the Green Belt. The judgment confirms that spatial impact alone is not the determining factor. In making a planning balance in matters affected by Green Belt, we must still address whether proposed development preserves openness and how it might conflict with the purposes of including land within the Green Belt. This judgment states that “Paragraph 90 (NPPF 2012) does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law”…. (it continues) “It is also consistent with the contrast drawn by the NPPF between openness and “urban sprawl”, and with the distinction between buildings, on the one hand, which are “inappropriate” subject only to certain closely defined exceptions, and other categories of development which are potentially appropriate. I do not read the officer as saying that visual impact can never be relevant to openness. … the officer was entitled to take the view that [the proposals] did not in themselves detract from openness in Green Belt terms. …… I respectfully agree with Hickinbottom J that such relatively limited visual impact which the development would have fell far short of being so obviously material a factor that failure to address it expressly was an error of law. For similar reasons, with respect to Mr Village's additional complaint, I see no error in the weight given by the officer … That again was a matter of planning judgement not law.”
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