High Court clarification on NPPF Green Belt policy

Will Thomas, Browne Jacobson

The High Court judgment in the case of R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin) provides useful clarification on the approach that local planning authorities should take when applying paragraph 89 of the National Planning Policy Framework (NPPF) to applications for development within the Green Belt.

Elmbridge Borough Council (the Council) granted planning permission for the development of a £17.9 million football and athletics facility, within the metropolitan Green Belt, on a 14 hectare former landfill site. The planning permission was granted on the basis that the proposal was not inappropriate development on the Green Belt. The planning committee found that the development fell within paragraph 89 of the NPPF which states that the “provision of appropriate facilities for outdoor sport” is not inappropriate development subject to the proviso that it “preserves the openness of the Green Belt and does not conflict with the purpose of including land within it.”

In assessing the impact on openness, the planning committee found that the sports hub proposal represented appropriate development within the Green Belt, as it did not have “a significant adverse impact” on the openness of the Green Belt or the amenity of nearby properties. It was found that there would also be significant benefits in terms of outdoor sports and recreation and improving damaged land.

A judicial review claim was brought by a local resident. One of the grounds was that the council had erred in its interpretation of paragraph 89 of the NPPF by finding that development could preserve the openness of the Green Belt even if it causes harm to openness. The local resident argued that if the development causes harm to openness, even limited harm, it does not “preserve” openness and is therefore inappropriate development.

The council argued that, as a matter of planning judgment, it was open to the planning committee to find that the proposal preserved the openness of the Green Belt even if it causes limited harm on the basis that all new buildings in the Green Belt caused some harm to openness.

The High Court upheld the challenge and concluded that a development cannot “preserve” the openness of the Green Belt when it causes harm to openness. Therefore, if a new sports facility causes harm to the openness of the Green Belt, it is inappropriate development, regardless of the extent of the harm. Despite concluding that the development would have an adverse impact on openness, the council had not considered whether there were “very special circumstances” to justify the development (as required by paragraph 88 of the NPPF).

This case is a useful clarification, for local planning authorities and developers, of how the Green Belt policies contained in the NPPF should be applied. If a proposal has an adverse impact on openness, the inevitable conclusion is that it does not comply with a policy that requires openness to be maintained. In this instance, the council could not find that the development would have “limited adverse impact” on the openness of the Green Belt on one hand, and then find that the development complied with the Green Belt policy on the other. The case demonstrates that a local planning authority does not have any latitude to find otherwise, based on the extent of the impact. If less than significant harm was permitted, the NPPF would say that.

This approach to paragraph 89 of the NPPF is also likely to equally apply to paragraph 90 of the NPPF which provides that certain changes of use are not inappropriate development provided that they “preserve the openness of the Green Belt”.