In R (Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3 the Supreme Court has ruled on the approach to be taken by a decision maker when considering “openness” in the context of paragraph 90 (now addressed by paragraph 146) of the NPPF.

Greenbelt policy requires that development that is “inappropriate” (i.e. most built development) should not be approved unless “very special circumstances” can be demonstrated. This provides a higher degree of protection to land designated as green belt. Meanwhile, paragraph 90 of the NPPF provided that certain forms of development were not inappropriate in the green belt, if they preserved its “openness” and did not conflict with the purposes of designating the land as green belt. This included “mineral extraction”.

In this case:

  • A quarry operator was granted permission for a six-acre extension to an existing quarry within the green belt.
  • This permission was judicially reviewed on the ground that the planning officer failed to consider the visual impact of the development when considering “openness”.
  • The Court of Appeal agreed, and quashed the planning permission.

The Supreme Court overturned the Court of Appeal and reinstated the planning permission. In doing so, it stated “openness” was a broad policy concept and a matter of planning judgement rather than law. Visual impact was a possible consideration for the decision maker when assessing impacts on the green belt, alongside matters such as the duration, reversibility and remediation of the development, absence of built development and separation of settlements. However, visual impact was not “a necessary part of the analysis” of openness.

While the ruling related to quarrying, the scope of the NPPF policy extends to other development including engineering operations, local transport infrastructure, the re-use of certain buildings and certain material changes of use of land, for example for outdoor sport or cemeteries. Therefore, the impact of the ruling may have wider implications for those bringing forward these types of development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.