Relieving the eye and the spirit

In a recent ruling the Court of Appeal has affirmed the visual dimension of openness, writes Ned Helme.

Hot on the heels of the Lee Valley Regional Park Authority case has come a further judgment of the Court of Appeal on openness in the Green Belt.

The case of Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 involved an application for planning permission for a proposal to replace a mobile home and storage yard (both lawful through effluxion of time) with a three-bedroom residential bungalow and associated residential curtilage. In the application, the Appellant contended that the volume of the bungalow would be less than the volume of the mobile home and 11 lorries lawfully parked on the site and that, accordingly, the proposed redevelopment “would not have a greater impact on the openness of the Green Belt” than the existing lawful use of the site, with the result that it should not be regarded as inappropriate development in the Green Belt under 89 of the NPPF.

The local planning authority refused permission and an Inspector dismissed the Appellant’s appeal. The Appellant brought section 288 proceedings, but the claim failed in front of Mrs Justice Lang on 7 October 2015.

The Appellant appealed to the Court of Appeal, contending that Mrs Justice Lang had erred in dismissing two of the Appellant’s grounds: (i) that the Inspector failed to treat the existing development on the site as a relevant material factor to be taken into account in considering whether the sixth bullet point of paragraph 89 was applicable; and (ii) that the Inspector wrongly conflated the concept of openness in relation to the Green Belt with the concept of visual impact.

Giving the judgment of the Court, Lord Justice Sales addressed both grounds together. He found that the concept of openness of the Green Belt was not narrowly limited to the volumetric approach suggested by the Appellant. The word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment occurs (in the context of which, volumetric matters may be a material concern, but are by no means the only one) and factors relevant to the visual impact on the aspect of openness which the Green Belt presents. Lord Justice Sales then continued at paragraph 15 as follows:

“The question of visual impact is 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. I consider that this interpretation is also reinforced by the general guidance in paras. 79-81 of the NPPF, which introduce section 9 on the protection of Green Belt Land. There is an important visual dimension to checking “the unrestricted sprawl of large built-up areas” and the merging of neighbouring towns, as indeed the name “Green Belt” itself implies. Greenness is a visual quality: part of the idea of the Green Belt is that the eye and the spirit should be relieved from the prospect of unrelenting urban sprawl. Openness of aspect is a characteristic quality of the countryside, and “safeguarding the countryside from encroachment” includes preservation of that quality of openness. The preservation of “the setting … of historic towns” obviously refers in a material way to their visual setting, for instance when seen from a distance across open fields. Again, the reference in para. 81 to planning positively “to retain and enhance landscapes, visual amenity and biodiversity” in the Green Belt makes it clear that the visual dimension of the Green Belt is an important part of the point of designating land as Green Belt.”

Although Lord Justice Sales accepted that there may be other harms with a visual dimension apart from harm to openness (for example, harm to visual amenity of neighbouring properties), he considered that it did not follow from this fact that the concept of openness of the Green Belt has no visual dimension itself.

Having set out these principles, Lord Justice Sales proceeded to analyse a passage from the judgment of Mr Justice Green in R (Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin) at [67]-[78] addressing the relationship between openness and visual impact. Mr Justice Green referred to the judgment of Mr Justice Sullivan (as he then was) in R (Heath and Hampstead Society) v Camden LBC [2007] EWHC 977 (Admin), which related to previous policy in relation to the Green Belt as set out in PPG 2, and drew from it the propositions that “there is a clear conceptual distinction between openness and visual impact” and “it is therefore wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact”: paragraph [78]. The case went on appeal, but this part of Mr Justice Green’s judgment was not in issue on the appeal: [2015] EWCA Civ 10.

Lord Justice Sales considered that Mr Justice Green had erred in setting out those propositions and that that section of his judgment should not be followed. He found that there were three problems with it. First, it did not focus sufficiently on the language of section 9 of the NPPF, read as part of the coherent and self-contained statement of national planning policy which the NPPF is intended to be. Secondly, through his reliance on the Heath and Hampstead Society case Mr Justice Green had given excessive weight to the statement of planning policy in PPG 2 for the purposes of interpretation of the NPPF. He had not made proper allowance for the fact that PPG 2 is expressed in materially different terms from section 9 of the NPPF. And thirdly, for reasons set out by Lord Justice Sales in some detail at paragraphs 18-26 of his judgment, the conclusion drawn by Mr Justice Green in his propositions at paragraph 78 was not in fact supported by the judgment in the Heath and Hampstead Society case.

In applying these principles to the Appellant’s case, Lord Justice Sales considered that there was no error of approach by the Inspector in his assessment of the issue of impact on the openness of the Green Belt. The Inspector had made a legitimate comparison of the existing position regarding use of the site with the proposed redevelopment. That was a matter of evaluative assessment for the Inspector in the context of making a planning judgment about relative impact on the openness of the Green Belt. His assessment could not be said to be irrational. It was rational and legitimate for him to assess on the facts of this case that there is 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; and 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 in the context of this site be directly compared, as had been proposed by the Appellant. The Inspector had also been entitled to take into account the difference in the visual intrusion on the openness of the Green Belt as he did.

For those reasons, with which Lord Justice Floyd and Lady Justice Arden agreed, the Appeal was dismissed.

Ned Helme is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..