Friday, 1 November 2013

Inappropriate development in the Green Belt


One of the concepts carried through into the NPPF from the former PPG2 is that those types of development that are ‘inappropriate’ in the Green Belt should not be permitted. Paragraphs 89 and 90 of the NPPF indicate types of development that are inappropriate in the Green Belt, and those that may be appropriate in the Green Belt, provided that the openness of the Green Belt is preserved and there is no conflict with the purpose of including the land in the Green Belt.

In Fordent Holdings Ltd v SSCLG [2013] EWHC 2844 (Admin) the High Court was called upon to consider whether the prohibition on ‘inappropriate’ development extended not only to built development of the types listed in paragraph 90 but also to changes of use to any of the uses within those same categories. The developer challenged an appeal decision on the grounds (among others) that the inspector was wrong to conclude that a change of use from agricultural use to outdoor sport and recreation was inevitably inappropriate development and thus not to be permitted in the absence of very special circumstances, and that the Inspector was wrong to conclude that Paragraph 89 of the NPPF did not apply to changes of use.

The first point that the Deputy Judge made is that “development” as used in the NPPF has the same meaning as the definition of that term in section 55 of the 1990 Act, and this relates not just to operational development but also includes a material change of use. It follows that a material change of use is capable of being inappropriate development within the meaning of Paragraph 87 of the NPPF.

The policy set out in paragraph 3.12 of PPG2 in relation to Green Belt development has not been carried through into the NPPF. The effect of Paragraphs 87, 89 and 90 of the NPPF, when read together, is that all development in the Green Belt is inappropriate unless it is either development falling within one or more of the categories set out in Paragraph 90 or is the construction of a new building or buildings that comes within one of the exceptions referred to in Paragraph 89.

Paragraph 90 contemplates not merely the construction of buildings but other development as defined by section 55 of the 1990 Act falling within the identified categories. Thus a change of use falling within one of the categories identified in Paragraph 90 is in principle capable of being not inappropriate. That being so, the Deputy Judge did not agree with the Inspector that no material changes of use fall or are capable of falling within Paragraph 90. The concept of development includes a material change of use and therefore a change of use for example to permit mineral extraction is capable of being not inappropriate providing that the change of use preserves openness and does not conflict with the purposes of including land in the Green Belt.

The real issue, therefore, is whether development in the form of a material change of use outside the categories identified in Paragraph 90 must by definition be inappropriate development or whether such a change of use has to be considered on its merits, with a decision to be taken as to whether it is inappropriate or not inappropriate development, as was the position under PPG2.

As noted above, the structure of the Green Belt policy has changed compared with the former PPG2, as a result of which there is no general exception for changes of use that maintain openness and do not conflict with the purposes of the Green Belt. Paragraph 90 contains a closed list of classes of development that are capable of being not inappropriate and Paragraph 89 contains a closed list of classes of new building construction not falling within Paragraph 90 that are not or may be not inappropriate by way of exception to the general rule that the construction of new buildings is to be regarded as inappropriate in the Green Belt. The Deputy Judge observed that, whilst it is true to say that the reference to "other forms of development" and the use of the word "other" in Paragraph 90 suggest that there are forms of development other than those listed in that paragraph that are capable of being not inappropriate, he considered that those words and phrases refer back to the exceptions listed in Paragraph 89.

Paragraph 89 is exclusively concerned with the construction of new buildings. It does not apply and is not expressed to apply to any other form of development. The word and phrase in the opening lines of Paragraph 90 that were relied on by the developer do not undermine this analysis, and do not lead to the conclusion that other forms of development not listed in Paragraph 90 and not capable of coming within the scope of Paragraph 89 are nonetheless capable of being development that is not inappropriate. If that was so then Paragraph 90 would not have been drafted in the way it has been drafted (as a closed list of classes of development that is not inappropriate). Contending otherwise, his lordship held, applies an over legalistic approach to the construction of a policy statement. When Paragraph 87, 89 and 90 are read together, as they should be, the meaning is clear. Development in the Green Belt is inappropriate (and thus can be permitted only in very special circumstances) unless it falls within one of the exceptions identified in Paragraphs 89 and 90.

On the second ground of challenge, the developer submitted that the Inspector failed correctly to construe Paragraph 89 because he decided that the word "it" in the second bullet point was a reference to the facilities element of any proposal when it should have been construed as applying to the relevant use relied on – i.e. outdoor sport or recreation or cemeteries. The Deputy Judge did not agree. The purpose of the exceptions to the general rule set out in the first sentence of Paragraph 89 is to distinguish between those types of new buildings which would be inappropriate if built in the Green Belt from those that are not. Some types of building are not further qualified. A new building for agriculture or forestry is not inappropriate. The provision of facilities for outdoor sport, outdoor recreation and cemeteries on the other hand is only potentially not inappropriate. Such a facility will only be not inappropriate development if it "… preserves the openness of the Green Belt and does not conflict with the purposes of including land within it…". If these further requirements are not made out then the proposed buildings will not fall within the exception and will fall within the general rule.

The Deputy Judge relied on the analysis of Ouseley J in Europa Oil and Gas Limited v. SSCLG [2013] EWHC 2643 (Admin) where he said:

"Secondly, as Green Belt policies NPPF 89 and 90 demonstrate, considerations of appropriateness, preservation of openness and conflict with Green Belt purposes are not exclusively dependent on the size of the building or structures but include their purpose. The same building, as I have said, or two materially similar buildings; one a house and the other a sports pavilion, are treated differently in terms of actual or potential appropriateness. The Green Belt may not be harmed necessarily by one but is harmed necessarily by another. The one is harmed by because of its effect on openness, and the other is not harmed by because of its effect on openness. These concepts are to be applied, in the light of the nature of the particular type of development."

Thus in each case it will be for the decision maker to apply this approach in order to decide whether a particular building which is claimed to provide appropriate facilities for outdoor sport or recreation to decide whether what is proposed preserves openness and does not conflict with the purposes of including land within the Green Belt. applying these principles. If it does, then what is proposed will come within the potential exception created by the second bullet point in the list in Paragraph 89. If it does not, then it will fall within the scope of the first sentence of that paragraph and can be permitted only if very special circumstances are made out.

The Deputy Judge considered that very special circumstances will have to be shown for a change of use to Green Belt land not falling within one of the classes identified in Paragraph 90 of the NPPF. If that is so, there is no logic in requiring very special circumstances to be shown, for example, for a change of use from agricultural land to an open sports ground (where the impact on openness is likely to be less than the facilities to be constructed in connection with the changed use) but not applying the same constraint to facilities to be constructed at such a site if a change of use is permitted, as long as the requirement in the second bullet point within Paragraph 89 that a facility should preserve the openness of the Green Belt and not conflict with the purposes of including land within it is read in the way referred to by Ouseley J in Europa Oil and Gas. Merely because Green Belt land is used for outdoor sport or recreation does not justify permitting the construction of a building or buildings that fail to preserve the openness of the Green Belt or conflict with the purposes of including land in the Green Belt, applying the approach to these concepts identified by Ouseley J in Europa Oil and Gas.

The Deputy Judge added that there is another obvious reason for adopting this approach. If a promoter of a scheme was able to obtain permission to change the use of agricultural to an open sporting ground he might well wish to construct or add to facilities in subsequent years. There would be great danger in not requiring very special circumstances to be demonstrated for future applications for the provision of facilities at existing outdoor recreation or sporting sites in the Green Belt. The construction which his lordship considered is appropriate eliminates that risk as long as the requirements imposed by the second bullet point in Paragraph 89 to preserve the openness of the Green Belt and avoid conflict with the purposes of including land in the Green Belt are read subject to the qualifications referred to by Ouseley J in Europa Oil and Gas.

© MARTIN H GOODALL

6 comments:

Andrew Steen said...

As I am preparing an application for open recreation in the Green Belt, this is an interesting article. The Council have taken the view to date that it is inappropriate development as open recreation is not referred to in paragraph 90 and that is an exhaustive list of not inappropriate development in the Green Belt.

I would be interested in your comment on the implication of paragraph 81 that states local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as to provide opportunities for outdoor sport an drecreation. This would suggest that such uses are appropriate in the Green Belt. Indeed, local planning authorities seem to be required to be pro-active in finding Green Belt land for this purpose rather than just re-active.

Presumably that was not raised in the judgement to which you refer?

My view is that the NPPF is a little contradictory on this point and paragraph 81 should take precedence. But we will see what my Council makes of it when I submit the application.

Martin H Goodall LARTPI said...

In light of the judgments in Europa Oil and Gas and in Fordent Holdings, it seems that the NPPF has brought about a (possibly unintended?) change in ministerial policy as regards inappropriate and ‘not inappropriate’ development in the Green Belt, compared with the policy set out in PPG2.

I agree that paragraph 81 of the NPPF does urge local planning authorities to plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide for outdoor sport and recreation. However, this appears to be inconsistent with paragraph 90, if that paragraph is regarded as being a ‘closed’ list.

I am not convinced that ministers really intended that paragraph 90 should be interpreted in such a restrictive way (especially in light of paragraph 81), but infelicitous drafting appears to have produced that result.

I always felt that even PPG2 (following the Perhsson judgment) was unduly restrictive, and that a more flexible approach should be taken to development in the Green Belt, as exemplified by the earlier judgment in Cranford Hall Parking. However, such pleas seem to have fallen on deaf ears, with the resulting strait-jacket on development in the Green Belt that we have now.

Anonymous said...

Very interesting article which addresses a very topical planning issue.

I am dealing with an application on a green belt site and endeavouring to use bullet point 6 in para 89 of the NPPF to justify a small infill scheme within a very large 'previously developed' site.

The NPPF test that has to be satisfied is whether the proposed development would have a greater impact on the openness of the GB and the purposes of including land within it than the existing development.

The issue is whether the openness test to be applied should be 'absolutist' i.e. that any new infill building on a pd site in the green belt is bound to affect 'openness' to some extent because putting any new building on a piece of land where there is at present no building may be said to affect 'openness' to some extent, at least in the immediately surrounding area, if not more widely. I contend that an absolutist approach effectively negates any scope for new infill development pursuant to bullet point 6, and this cannot reasonably have been the intention of Government when this specific exception was included in paragraph 89.

Alternatively, should the test be applied more realistically by imputing a 'materiality' criterion i.e.. will the impact on openness be materially greater than the existing development?

I have been unable to find any appeal decisions or other guidance on this point and would welcome comments.

Martin H Goodall LARTPI said...

I sympathise with the argument, but the judgment in Fordent Holdings is unhelpful.

Anonymous said...

Found this interesting as the judgment appears to recognise the 2nd bullet point as discrete from the other 5 exceptions identified in para 89.

I say 'interesting' because my local LPA is determined to conflate exceptions identified in bullet points 5 and 6.

Essentially, whilst an Applicant has argued that the proposal represents "limited infilling in villages" for which there is no express requirement to preserve the openness (how could one if one is effectively proposing a new building in a gap?), the LPA uses the requirement from bullet point 6, which refers - amongst other things - to the "limited infilling" of pdl, to conclude that all "limited infilling" must preserve the openness, of the GB. And thus has Application has been refused.

I would be grateful for any comment you might have.

Martin H Goodall LARTPI said...

In answer to the anonymous query dated 09/02/14, quite frankly this can only be tested on appeal. The case would have to be carefully analysed in the light of Part 9 of the NPPF, taking into account the judgment in Fordent Holdings. Without knowing the full facts, I would not like to predict the outcome of such an appeal.