Assessment of development which is “not inappropriate” in the Green Belt

Have recent changes to the NPPF 2024 altered how assessment of development which is ‘not inappropriate’ in the Green Belt is approached? That was the question that the first ground of appeal in the case of Mole Valley DC v Secretary of State for Housing, Communities and Local Government [2025] EWHC 2127 (Admin) considered. Here the claimant Council brought challenges under both ss.288 and 289 TCPA 1990 to the decision of an Inspector to quash an enforcement notice, and grant planning permission, for the stationing of residential caravans and touring caravans for residential purposes on land in the Green Belt.

The Framework

Critical to the case was para 153 of the 2024 National Planning Policy Framework, and the new footnote 55. These provide:

153. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt, including harm to its openness55. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.…

Fn 55. Other than in the case of development on previously developed land or grey belt land, where development is not inappropriate.

The arguments

In considering the applicant’s challenge to the enforcement notice and refusal of planning permission, the Inspector concluded that the land in question was ‘grey belt’. As a result, the Inspector went on to conclude:

16. I have had regard to the matters raised regarding the effect of the development in terms of openness. However, openness is one of the essential characteristics of the Green Belt and, as a matter of policy, the aim of preserving the openness of the Green Belt cannot be compromised by development that is ‘not inappropriate’.

It was this passage that the Council said incorrectly applied para 153 and footnote 55. Rather, it argued that the new footnote merely removed the requirement to accord ‘substantial weight’ to any harm to openness caused by ‘not inappropriate’ development, but that assessment of openness was still required. Thus, in concluding that openness cannot be compromised by ‘not inappropriate’ development at all, the Inspector had materially erred. In response, the defendant Secretary of State argued this was a misreading of these paragraphs and their amendment and, crucially, that this was precisely the argument rejected by the Court of Appeal in 2016 in R (Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404.

The judgment

The judge (Choudhury J) rejected the Council’s arguments on this ground. He first considered Lee Valley. In that case Lindblom LJ had rejected the argument that the predecessor to para 153 should be read as requiring a consideration of openness of the Green Belt, and its purposes, whether or not the development was ‘not inappropriate’. He concluded that the paragraph had to be read in the context of all of the Framework’s policy on Green Belt, and particularly the distinction between ‘inappropriate development’ which is ‘by definition, harmful’, and development which is ‘not inappropriate’ and thus not harmful. In short, once a development is ‘not inappropriate’ then ‘the question of the impact of the building on openness is no longer at issue’. Choudhury J considered that this guidance was clearly of general application, and provided a complete answer to the Council’s case.

As a result, the Council went on to argue that Lee Valley was no longer good law as it had been based on the earlier decision in R (on the application of Timmins) v Gelding BC [2014] EWHC 654, which had itself been disapproved of in R (on the application of Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire CC [2020] UKSC 3. Choudhury J rejected this as, while the approach to assessing openness in Timmins had been disapproved (as it inappropriately excluded issues of visual impact from openness), Lindblom LJ did not rely on those passages of Timmins for this point in Lee Valley. Indeed, key passages of Lee Valley had themselves been approved of by Lord Carnwath JSC in Samuel Smith Old Brewery. In any event, the proper approach to the test of openness was immaterial to when the effect on openness would be assessed. The distinction between ‘inappropriate’ and ‘not inappropriate’ development was a distinct issue.

Having established Lee Valley remained good law, the judge rejected the Council’s case on ground 1. He went on to note that the approach adopted by the Inspector was the straightforward one and did not require a strained reading of the Framework. Indeed, the Council’s case would have represented a fundamental departure from the long-established approach to Green Belt and development within it (going back to PPG2). Something far more than the wording change and footnote 55 was required for there to have been the substantial change that the Council’s position would require.

As to footnote 55 itself, Choudhury J rejected the suggestion that the Lee Valley approach rendered it otiose. Taking the proper approach to interpretation, footnote 55 is simply to clarify that a reduction of openness on previously developed land or grey belt land is not harm to openness for Green Belt policy. This is practical clarification, and carves out an exception for such previously developed land and grey belt land from the broad statement that substantial weight should be given to any harm to the Green Belt. Indeed, the oddity of the Claimant’s approach would be that it would undermine the policy approach of giving substantial weight to any harm to the Green Belt whatever its extent. That approach does not accord with para 153, the historic approach to Green Belt, and introduces uncertainty and complexity into what should be a straightforward exercise.

Finally, the judge noted that the Council’s position would undermine the very purpose of the grey belt exception which has been introduced to the Framework. That policy was intended to permit construction on Green Belt which was not previously permitted. The Claimant’s approach would substantially undermine that permissive policy if an assessment of harm to openness were still required. As a result, the Inspector’s approach was entirely appropriate.

Comment

This judgment is useful as it emphasises that the introduction of grey belt was simply an introduction of another situation where development would be ‘not inappropriate’ in the Green Belt, and did not herald a broader change to Green Belt policy. While footnote 55 might at first look otiose, it is practical guidance that reminds us that, while grey belt (and previously developed land) remains Green Belt, it is Green Belt for which all development is ‘not inappropriate’. It is thus distinct to para 154 of the Framework, which sets out exceptions based on the type of development proposed; grey belt is an exception based on the nature of the Green Belt land upon which development is proposed.

Daniel Kozelko is a barrister at 39 Essex Chambers.