Battle for the green belt

The case of R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council and Valley Grown Nurseries Ltd [2016] EWCA Civ 404 is the latest in a series of decisions by the Court of Appeal on the proper interpretation of the green belt provisions within the National Planning Policy Framework (NPPF).

It is also the latest in a longer list of judgments in which the Court of Appeal has been asked to interpret provisions within the NPPF, a policy document whose own ministerial foreword claims it is written 'simply and clearly'.

The issue the court had
to decide in Lee Valley was
whether the development
was 'appropriate' in the green belt and therefore could not engender harm to openness
or conflict with the purposes
of including land within it.

The basic facts were as follows: in 2014 Epping Forest District Council granted planning permission to the interested party for a large glasshouse for the growing of tomatoes and peppers. The site was located in the green belt, within the Lee Valley Regional Park.

The Regional Park Authority objected to the scheme on a number of grounds, including green belt harm, conflict with the NPPF and the development plan, and the impacts of
the scheme on the special protection area (SPA). Following the grant of permission, the
Park Authority brought judicial review proceedings on those three grounds, none of which were successful before Mr Justice Dove at first instance.

The Park Authority sought to persuade the Court of Appeal that Dove J's decision was wrong in three respects. This article is concerned only with the first ground of challenge, which broadly related to the council's treatment of national green belt policy.The claimant's argument centred on the proper interpretation of certain paragraphs of green belt policy within the NPPF. The material parts state:

'87. As with previous green belt policy, inappropriate development is, by definition, harmful to the green belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight
is given to any harm to the
green belt…

89. A local planning
authority should regard the construction of new buildings
as inappropriate in the green belt. Exceptions to this are… buildings for agriculture and forestry…'

The claimant argued that
the reference to 'any planning application' in paragraph 88 meant any application for development in the green belt, whether inappropriate or not, and that the words 'any harm
to the green belt' included any
type of harm, including harm
to openness and harm to the purposes of the green belt. The argument was unsuccessful. Lord Justice Lindblom reiterated the principle that the interpretation of planning policy is a matter for the court and not the decision-maker. This principle applies to the provisions of the NPPF. He stated that the first sentence of paragraph 88 cannot be read in isolation, but that 'any harm
to the green belt' should be 'properly regarded as such
when the policies in paragraphs 79 to 92 are read as a whole'.

The court highlighted that
the relevant category of exception in paragraph 89 - 'buildings for agriculture and forestry' - is entirely unqualified and therefore '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'. This
is in contrast to the other five categories of exception in paragraph 89, which are each subject to some limitation. However, the court was also keen to emphasise that this
does not mean proposals for agricultural buildings in the green belt will necessarily be granted planning permission.
A proposal may fall foul of other development plan policies or provisions within the NPPF which, for example, protect against harmful visual impact
or harm to the character of the countryside. The size and siting of any building is likely to be highly material when a scheme is considered against such policies.

The lack of a limitation on the scale of agricultural buildings which will be appropriate is perhaps due to the fact that the relevant policies have remained unchanged for decades, and were developed at a time when such buildings were likely to be built on a smaller scale. Or, it
can be seen as the government's recognition that agricultural buildings have to be constructed in the countryside, including countryside in the green belt
(as noted by the court).

Either way, if this or any future government wishes to limit the scale of those buildings which will be appropriate, it will be necessary to amend national policy - hopefully in a way which will not lead to protracted litigation over its meaning. SJ

Victoria Hutton is a barrister practising from 39 Essex Chambers, which acted for Valley Grown Nurseries in the case