County council wins Supreme Court battle over mineral extraction in Green Belt and “openness”

North Yorkshire County Council has won a Supreme Court appeal over whether, as local planning authority, it properly understood the meaning of the word “openness” in the national planning policies applying to mineral working in the Green Belt.

At issue in Samuel Smith Old Brewery (Tadcaster) & Ors, R (on the application of) v North Yorkshire County Council [2020] UKSC 3 was the application of Paragraph 90 of the National Planning Policy Framework, which (in its original 2012 form) provides:

“Certain other forms of development are not inappropriate in the Green Belt provided that they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt. These are:

- mineral extraction;”

Darlington Quarries had applied to extend the operational face of Jackdaw Crag Quarry, a magnesian limestone quarry 1.5 kilometres to the south-west of Tadcaster, North Yorkshire.

The council’s Planning and Regulatory Functions Committee on 9 February 2016 accepted their officer’s recommendation that planning permission be granted.

The officer’s report detailed a wide range of planning considerations. Under the heading “Landscape impact” the report summarised the views of North Yorkshire’s Principal Landscape Architect, who did not object in principle to the proposal, but drew attention to the potential landscape impacts and the consequent need to ensure that mitigation measures were maximised.

In a section headed “Impacts of the Green Belt” the report referred to the consultation response from the First Respondent (Samuel Smith Old Brewery), including comments addressing the openness of the Green Belt.

The First and Second Respondent (Oxton Farm) brought judicial review proceedings of the decision to grant planning permission. They said, among other things, that the officer’s report erred in its analysis of “openness” in paragraph 90 of the NPPF in that it did not consider visual impact.

Mr Justice Hickinbotom, as he then was, found in the High Court that there was no error as the officer’s report was not required to take into account visual impact from the development.

Disagreeing, the Court of Appeal (Lindblom and Lewison LJJ) held that the officer’s report was defective at least in failing to make clear that, under para 90 of the NPPF, visual impact was potentially relevant; and, further, that on the officer’s findings visual impact was quite obviously relevant and therefore a necessary part of the assessment. The planning permission was quashed.

A Supreme Court panel comprising Lady Hale, Lord Carnwath, Lord Hodge, Lord Kitchin and Lord Sales heard the case on 3 December 2019.

It allowed the appellant council and the Third Respondent’s (Darlington Quarries’) appeal.

Lord Carnwath gave the sole judgment, with which the other Justices agreed. He said it was clear from the NPPF and Planning Policy Guidance that “the visual quality of the landscape is not in itself an essential part of the ‘openness’ for which the Green Belt is protected”.

The judge noted that while the text of paragraph 90 of the NPPF had changed from that in Planning Policy Guidance 2: Green Belts (published 1995, amended in 2001), there had been no significant change of approach. “If that had been intended, one would have expected it to have been signalled more clearly.”

Lord Carnwath said the concept of “openness” in paragraph 90 of the NPPF was a broad policy concept. “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.”

The question was, Lord Carnwath said, whether visual impact was a consideration which, as a matter of law or policy, was necessary to be taken into account, or was so obviously material as to require such direct consideration.

The Supreme Court said 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, he added. “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.”

Lord Carnwath said he did not read the officer’s report as saying that visual impact could never be relevant to openness.

He said that as to the particular impacts identifed by Lindblom LJ, the officer had been 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, they did not in themselves detract from openness in Green Belt terms.

Lord Carnwath said: “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 [counsel for Samuel Smith Old Brewery’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.”

Ben Standing, senior associate and public, planning and environmental law specialist at Browne Jacobson, said: “Whilst this case does not alter the existing interpretation of the National Planning Policy Framework, it is a helpful reminder of the principle that significant discretion should be given to expert decision-makers and that the courts should not usually intervene. Despite this, planners are well advised to provide detailed reasons for their recommendations, especially in those cases which are likely to be controversial."

[This article was based on the Supreme Court’s press summary]