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Broxbourne March 20 Senior Property 600x100

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Court of Appeal rules on meaning of 'inappropriate development' in Green Belt

Construction iStock 000002149516XSmall 146x219The Court of Appeal has handed down a key ruling on the meaning of “inappropriate development” in the Green Belt.

The case of Lee Valley Regional Park Authority, R (on the application of) v Epping Forest District Council & Anor (Rev 1) [2016] EWCA Civ 404 concerned Epping’s grant in April 2015 of planning permission for a development by Valley Grown Nurseries.

The proposal was to extend the nursery by the construction of a very large glasshouse, covering some 92,000 square metres in area. The glasshouse was to be used to grow tomatoes and peppers.

The site for the glasshouse is in the Metropolitan Green Belt, within the Lee Valley Regional Park and less than a kilometre from the Lee Valley Special Protection Area and Ramsar site.

The Regional Park Authority objected to the proposal on several grounds, including the harm it said the development would cause to the Green Belt, alleged conflict with policy in the National Planning Policy Framework (NPPF) and in the development plan, and the effects the development might have on the SPA.

In the High Court Mr Justice Dove rejected the claim on all grounds. The Regional Park Authority sought to persuade the Court of Appeal that in three respects his decision was wrong.

The issues in the appeal were:

1. Was the judge wrong to conclude that the council had not misinterpreted and misapplied relevant national and local policy, including policies relevant to the "openness" of the Green Belt?

2. Was he wrong to reject the argument that the council failed to perform the decision-maker's duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application for planning permission in accordance with the development plan unless material considerations indicated otherwise, and that it also misunderstood and misapplied NPPF policy for the "presumption in favour of sustainable development"?

3. Was he wrong to conclude that the council had properly discharged its duty, under article 6 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") and regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("the Habitats regulations"), to consider whether it was necessary to undertake an "appropriate assessment" of the implications of the development for the Lee Valley SPA?

According to 39 Essex Chambers, whose Peter Village QC and Ned Helme appeared for Valley Grown Nurseries, the principal issue in the case concerned the consequences of a proposal being appropriate (or “not inappropriate”) development in the Green Belt.

The glasshouse was appropriate, since it was a “building for agriculture” under the first bullet of paragraph 89 of the NPPF. The Regional Park Authority contended that an appropriate proposal caused no “definitional harm” but that it could cause “actual harm” to the openness of the Green Belt, or to the purposes of including land in it, and that any such actual harm should be given “substantial weight” under paragraph 88 of the NPPF.

In the Court of Appeal Lord Justice Lindblom rejected the Regional Park Authority’s argument. He said it would have marked an “important but unheralded change” from previous Green Belt policy under PPG2 and that it would negate the purpose of categorising agricultural buildings as appropriate.

Lord Justice Lindblom added: “Development that is not, in principle, ‘inappropriate’ in the Green Belt is, as Dove J. said….., development ‘appropriate to the Green Belt’.”

The Court of Appeal judge said: “On a sensible contextual reading of the policies in paragraphs 79 to 92 of the NPPF, development appropriate in – and to – the Green Belt is regarded by the Government as not inimical to the ‘fundamental aim’ of Green Belt policy ‘to prevent urban sprawl by keeping land permanently open’, or to ‘the essential characteristics of Green Belts’, namely ‘their openness and their permanence’ (paragraph 79 of the NPPF), or to the ‘five purposes’ served by the Green Belt (paragraph 80). This is the real significance of a development being appropriate in the Green Belt, and the reason why it does not have to be justified by 'very special circumstances'."

Lord Justice Lindblom went on to say: “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 paragraph 3.15 of PPG2), are likely to be important considerations.”

The Court of Appeal judge added that in this case Epping DC’s to such matters was unimpeachable and the grant of permission was therefore lawful.

Peter Village QC and Ned Helme of 39 Essex Chambers acted for Valley Grown Nurseries, instructed by Duffield Harrison LLP. 

Megan Thomas of 6 Pump Court appeared for Epping, while Gregory Jones QC and David Graham of Francis Taylor Building acted for the Regional Park Authority.