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The concept of “Openness” - 2020 vision at last?

It is, perhaps, one of the many oddities as well as ironies of 2020, so far, that having been in national “lockdown”  the Higher Courts have produced more planning jurisprudence on the concept of “openness” this year than ever before, writes John Pugh-Smith.

In early February 2020 it was thought by many practitioners that the Supreme Court had given a sufficiently clear statement of the correct approach in R (on the application of Samuel Smith Old Brewery (Tadcaster)  v North Yorkshire County Council [2020] UKSC 3. There, the issue of “openness” arose in the context of a challenge to the extension of the Jackdaw Crag Quarry in the Green Belt and the application of the former paragraph 90 of the initial National Planning Policy Framework [1], now paragraph 146 of the current NPPF (Feb. 2019 version). Disagreeing with the approach taken by the Court of Appeal [2], the Supreme Court held that for the purposes of the NPPF, the visual quality of the landscape was not in itself an essential part of the "openness" for which the green belt was protected (see para.5 of judgment). The concept of "openness" in para.90 was a broad policy concept. Naturally read, it referred back to the underlying aim of the green belt policy "to prevent urban sprawl by keeping land permanently open". As  the former Planning Policy Guidance (PPG)2 made clear, it was not necessarily a statement about the visual qualities of the land, though in some cases that might be an aspect of the planning judgement involved

Giving the Court’s judgment Lord Carnwath remarked (my emphases added in bold):

22. The concept of “openness” in para 90 of the NPPF seems to me a good example of such a broad policy concept [3]. It is naturally read as referring back to the underlying aim of Green Belt policy, stated at the beginning of this section: “to prevent urban sprawl by keeping land permanently open …”. Openness is the counterpart of urban sprawl and is also linked to the purposes to be served by the Green Belt. As PPG2 made clear, it is not necessarily a statement about the visual qualities of the land, though in some cases this may be an aspect of the planning judgement involved in applying this broad policy concept. Nor does it imply freedom from any form of development. Paragraph 90 shows that some forms of development, including mineral extraction, may in principle be appropriate, and compatible with the concept of openness. A large quarry may not be visually attractive while it lasts, but the minerals can only be extracted where they are found, and the impact is temporary and subject to restoration. Further, as a barrier to urban sprawl a quarry may be regarded in Green Belt policy terms as no less effective than a stretch of agricultural land.

23. It seems surprising in retrospect that the relationship between openness and visual impact has sparked such legal controversy. Most of the authorities to which we were referred were concerned with the scope of the exceptions for buildings in para 89 (or its predecessor). In that context it was held, unremarkably, that a building which was otherwise inappropriate in Green Belt terms was not made appropriate by its limited visual impact (see R (Heath and Hampstead Society) v Camden London Borough Council [2007] EWHC 977 (Admin), upheld at R (Heath and Hampstead Society) v Vlachos [2008] EWCA Civ 193; [2008] 3 All ER 80). As Sullivan J said in the High Court:

“The loss of openness (ie unbuilt on land) within the Green Belt or Metropolitan Open Land is of itself harmful to the underlying policy objective. If the replacement dwelling is more visually intrusive there will be further harm in addition to the harm by reason of inappropriateness …” (para 22)

To similar effect, in the Lee Valley case [4], Lindblom LJ said:

“The concept of ‘openness’ here means the state of being free from built development, the absence of buildings - as distinct from the absence of visual impact.” (para 7, cited by him in his present judgment at para 19)

24. Unfortunately, in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin) (a case about another familiar Green Belt category - cemeteries and associated buildings), Green J went a stage further holding, not only that there was “a clear conceptual distinction between openness and visual impact”, but that it was:

“wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact.” (para 78, emphasis in original)

25. This was disapproved (rightly in my view) in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466; [2017] 2 P & CR 1, para 18. This concerned an inspector’s decision refusing permission for a proposal to replace a mobile home and storage yard with a residential bungalow in the Green Belt. In rejecting the contention that it was within the exception for redevelopment which “would not have a greater impact on the openness of the Green Belt”, the inspector had expressly taken account of its visual effect, and that it would “appear as a dominant feature that would have a harmful impact on openness here”. The Court of Appeal upheld the decision. Sales LJ said:

“The concept of ‘openness of the Green Belt’ is not narrowly limited to the volumetric approach suggested by [counsel]. 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 … and factors relevant to the visual impact on the aspect of openness which the Green Belt presents.” (para 14)

Before us there was no challenge to the correctness of this statement of approach. However, it tells one nothing about how visual effects may or may not be taken into account in other circumstances. That is a matter not of legal principle, but of planning judgement for the planning authority or the inspector.

Given the degree to which the Supreme Court seemingly differed from the approach taken by the Court of Appeal on the merits it is also informative to record the following (my emphases again added in bold):

39. With respect to Lindblom LJ’s great experience in this field, I am unable to accept his analysis. The issue which had to be addressed was whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including the land within the Green Belt. Those issues were specifically identified and addressed in the report. There was no error of law on the face of the report. Paragraph 90 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.

40. Lindblom LJ criticised the officer’s comment that openness is “commonly” equated with “absence of built development”. I find that a little surprising, since it was very similar to Lindblom LJ’s own observation in the Lee Valley case (para 23 above). 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.

 41. As to the particular impacts picked out by Lindblom LJ, the officer was entitled to take the view that, in the context of a quarry extension of six hectares, and taking account of other matters, including the spatial separation noted by her in para 7.124, they did not in themselves detract from openness in Green Belt terms. The whole of paras 7.121 to 7.126 of the officer’s report address the openness proviso and should be read together. Some visual effects were given weight, in that the officer referred to the restoration of the site which would be required. Beyond this, 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 to the fact that this was an extension of an existing quarry. That again was a matter of planning judgement not law.

Nevertheless, on 3rd April, in an early example of a remotely “handed down” planning judgment during the lockdown the Court of Appeal [5] revisited the issue in Hook v Secretary for Housing, Communities and Local Government [2020] EWCA Civ 486. The context, here, was a statutory appeal under Section 288 of the TCPA 1990 against an Inspector’s finding that alterations to a building amounted to inappropriate development within the Green Belt because it was not a "building for agriculture”, in consequence of which he had not needed to consider the imposition of an agricultural occupancy condition. Addressing the issue, Lindblom LJ set out the basic points from the relevant cases in the following terms:

(1) The concepts referred to in NPPF policy for the Green Belt – “inappropriate development”, “very special circumstances”, the preservation of the “openness” of the Green Belt, the impact of development on “the purposes of including land within it”, and so on – are not concepts of law. They are broad concepts of planning policy, used in a wide range of circumstances (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13; [2012] 2 P. & C.R. 9, at paragraph 19). Where a question of policy interpretation properly arises, understanding those concepts requires a sensible reading of the policy in its context, without treating it as if it were a provision of statute. Applying the policy calls for realism and common sense.

(2) In dealing with the “threshold” question of whether a proposal is for “inappropriate development” in the Green Belt, and then in deciding whether the proposal is acceptable and ought to be given planning permission, the decision-maker must establish relevant facts and exercise relevant planning judgment. If called upon to review the decision, the court will not be drawn beyond its limited role in a public law challenge (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780G-H). The interpretation of planning policy falls ultimately within that role, but the decision-maker’s application of policy will only be reviewed on traditional public law grounds (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 and 19). As this court has emphasized more than once, excessive legalism must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCA Civ 893, [2018] P.T.S.R. 88, at paragraph 50). The court will not second-guess the decision-maker’s findings of fact unless some

(3) The nature of the decision-maker’s task will differ from one kind of development to another. For example, whether a proposal is for “buildings for agriculture and forestry” – the first category of “new buildings” that are not to be regarded as “inappropriate development” under the policy in paragraph 89 of the NPPF – will be largely if not wholly a matter of fact. There is no proviso in that category (see Lee Valley, at paragraph 19). By contrast, assessing whether a proposed “[facility] for outdoor sport” – the second category in paragraph 89 – would “preserve the openness of the Green Belt” is largely a matter of planning judgment. The same applies to proposals for “mineral extraction” or “engineering operations” – two categories of “other forms of development” that are potentially “not inappropriate” under the policy in paragraph 90, which are subject to the same proviso. The requisite planning judgment will turn on the particular facts. It is not predetermined by the general statement in paragraph 79 that one of the “essential characteristics” of Green Belts is their “openness” – meaning, in that context, the mere presence of buildings, regardless of any visual impact they might have (see Lee Valley, at paragraph 7). In the context of a development control decision, as Sales L.J. observed in Turner (at paragraph 14), “[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”, and (at paragraph 15) “[the] question of visual impact is implicitly part of the concept of [the] “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF.

So, there we should have had it; but for the implications of Lord Carnwath’s judgment in Samuel Smith, published on 5th February 2020 shortly after Hook had been heard in the Court of Appeal on 28th January 2020.

Seemingly, this reconciliation has arisen through the Court of Appeal’s further consideration of “openness” in the recent case of R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council [2020] EWCA Civ 81. Although in the context of a permission to build 39 dwellings on land within a “green wedge” the Court acknowledged that, although local rather than national, the policy position was analogous to situations concerned with national policy for green belts. The points identified in Hook could be extended to include that the imperative of preserving the "openness" of the green belt was not a concept of law but a broad policy concept with its meaning to be derived from the words used by the policy-maker in their context.

Perhaps, re-establishing his position as the premier judicial planning specialist following Lord Carnwath’s retirement on 12th March 2020, Lindblom LJ now summarises the current case law principles as follows (my emphases, once again, added in bold):

22. To enlarge on the basic points recently identified by this court in Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486 (at paragraph 7):

(1) The imperative of preserving the “openness” of the Green Belt – a basic component of government policy for the Green Belt in the NPPF, as in previous statements of national policy – is not a concept of law; it is a broad concept of policy (see Hook, at paragraph 7(1)). As with other formulations of planning policy, its meaning is to be derived from the words the policy-maker has used, read sensibly in their “proper context”, and not as if they were the provisions of a statute or contract (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] 2 P. & C.R. 9, at paragraphs 18 and 19).

(2) Applying the policy imperative of preserving the “openness” of the Green Belt requires realism and common sense. As was emphasised both by this court in Samuel Smith (at paragraphs 33, 38 to 40 and 50), and by the Supreme Court (at paragraphs 22 and 25), it involves the exercise of planning judgment by the decision-maker. When it considers whether the decision-maker has exercised a lawful planning judgment in applying a planning policy, the court will not be taken beyond its limited role in a public law challenge (see the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1458G to p.1459D). As this court has often said, an unduly legalistic approach must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2018] P.T.S.R. 88, at paragraph 50; and Hook, at paragraph 7(2)). But if an error of law is shown – such as a misinterpretation of policy leading to a failure to exercise a planning judgment that the policy requires – the court will intervene.

(3) The courts’ reasoning in Lee Valley, Turner and Samuel Smith dispels the fallacy that the visual effects of a development cannot be relevant to the question of whether it will preserve the “openness” of the Green Belt. In both Turner (at paragraphs 13 to 18 and 26) and Samuel Smith (at paragraphs 19 to 22) the Court of Appeal accepted that, in principle, such effects can be relevant to this question, as a matter of planning judgment. And this was accepted by the Supreme Court in Samuel Smith (see paragraphs 22, 25 and 40). 

(4) Those three cases demonstrate the importance of context to a true understanding of the policy being considered. Context governs the policy’s meaning. Thus, for example, the aim of preserving the “openness” of the Green Belt was not limited by the proposition in paragraph 79 of the NPPF that one of the “essential characteristics” of Green Belts is their “openness” – a concept whose meaning, in that context, goes to the mere physical presence, or otherwise, of buildings, regardless of any visual impact they might have (see Lee Valley, at paragraph 7; and Hook, at paragraph 7(3)). As this court said in Lee Valley (at paragraph 7), specifically in the context of paragraph 79, “[the] concept of “openness” here means the state of being free from built development, the absence of buildings – as distinct from the absence of visual impact”. But this does not mean that, in the context of the development control policies in paragraphs 87 to 90, harm to “openness” cannot be caused by forms of development other than buildings – such as those referred to in paragraph 90, which contains a proviso that they “preserve the openness of the Green Belt”; or cannot be caused by a development’s visual impact on “openness”. If it were otherwise, those policies would not make sense. 

(5) There was no indication in paragraphs 87 to 90 of the NPPF that the aim of preserving the openness of the Green Belt excludes consideration of visual as well as physical or spatial impact. On the contrary, as Sales L.J. said in Turner, “[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” (paragraph 14); “[the] question of visual impact is implicitly part of the concept of [the] “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF” (paragraph 15); and “it does not follow from the fact that there may be other harms with a visual dimension apart from harm to the openness of the Green Belt that the concept of openness of the Green Belt has no visual dimension itself” (paragraph 16). The correctness of those observations was not doubted by the Supreme Court in Samuel Smith”.

So, is the application of the concept now clear and beyond further judicial doubting? Hopefully so, given that where the Higher Courts lay emphasis on “planning judgment”  Nonetheless, as my colleague, Richard Harwood, concludes his commentary on Samuel Smith in the current issue of the Journal of Planning & Environment Law [6]: The Supreme Court’s view “points towards the range of factors which could, but did not have to be taken into account in considering whether a scheme preserved openness. However, it also illustrates the nuanced meaning of openness, and meaning is a matter of law for the court. Legal debates over whether Green Belt policy has been correctly understood are likely to continue”. Whether these debates will be confined by the Higher Courts to local, fact specific challenges in the Planning Court await an equally uncertain future like the future health of the Nation during the remainder of 2020 and beyond.

JOHN PUGH-SMITH FSA FCIArb practises as a barrister and neutral dispute resolver from  39 Essex Chambers. He is  currently advising the promoters on the planning aspects of securing consent for a large Möbius strip-type architectural sculpture and national landmark of hope, currently  known “The Wall of Answered Prayer”, to be built in the Birmingham Green Belt between the M6 and M6 near Coleshill, North Warwickshire [7]

[1]  “90. 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. These are:

- 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

 - development brought forward under a Community Right to Build Order.” (Emphasis added. I shall refer to the words so emphasised as “the openness proviso”

[2] [2018] EWCA Civ 489; Lewison & Lindblom,  LJJ

[3] Referencing back to his previous comments (@ para. 21) about too much time being spent discussing previous court authorities on the relevance of visual impact under Green Belt policy and to the warning Lord Carnwath gave in the Hopkins Homes case [2017 UKSC 37 (@ paras. 23-34) over “over-legislation” of the planning process

[4] R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404; [2016] Env LR 30 (“the Lee Valley case”),

[5]  Lindblom, Peter Jackson and Asplin LJJ

[6] Commentary by Richard Harwood QC at [2020] JPL 916-7

[7] https://www.thewall.org.uk/

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