R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council Valley Grown Nurseries Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Underhill,Lord Justice Treacy |
| Judgment Date | 22 April 2016 |
| Neutral Citation | [2016] EWCA Civ 404 |
| Docket Number | Case No: C1/2015/1430 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 2016 |
and
Lord Justice Treacy
Lord Justice Underhill
and
Lord Justice Lindblom
Case No: C1/2015/1430
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gregory Jones Q.C. and Mr David Graham (instructed by Lee Valley Regional Park Authority) for the Appellant
Ms Megan Thomas (instructed by Epping Forest District Council) for the Respondent
Mr Peter Village Q.C. and Mr Ned Helme (instructed by Duffield Harrison LLP) for the Interested Party
Hearing dates: 27 and 28 January 2016
Introduction
This appeal requires the court to consider, among other things, the meaning and effect of the Government's planning policy in England for the construction of agricultural buildings in the Green Belt.
With permission granted by Laws L.J., the appellant, Lee Valley Regional Park Authority, appeals against the order of Dove J., dated 13 April 2015, dismissing its claim for judicial review of the planning permission granted on 21 August 2014 by the respondent, Epping Forest District Council, for development proposed by the interested party, Valley Grown Nurseries Ltd., next to their nursery at Paynes Lane, Nazeing, in Essex. The proposal was to extend the nursery by the construction of a very large glasshouse – some 92,000 square metres in area – for the growing of tomatoes and peppers. The site is about 18 hectares of farmland and restored mineral workings in the Metropolitan Green Belt, within the Lee Valley Regional Park, and less than one kilometre (0.98km) from the Lee Valley Special Protection Area ("the Lee Valley SPA") and Ramsar site. The Regional Park Authority objected to the proposal on several grounds, including the harm it said the development would cause to the Green Belt, alleged conflict with policy in the National Planning Policy Framework ("the NPPF") and in the development plan, and the effects the development might have on the SPA. Dove J. rejected the claim on all grounds. In this appeal the Regional Park Authority seeks to persuade us that in three respects his decision was wrong.
The issues in the appeal
The issues in the appeal are these. First, was the judge wrong to conclude that the council had not misinterpreted and misapplied relevant national and local policy, including policies relevant to the "openness" of the Green Belt (ground 1)? Secondly, was he wrong to reject the argument that the council failed to perform the decision-maker's duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application for planning permission in accordance with the development plan unless material considerations indicated otherwise, and that it also misunderstood and misapplied NPPF policy for the "presumption in favour of sustainable development" (ground 2)? And thirdly, was he wrong to conclude that the council had properly discharged its duty, under article 6 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") and regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("the Habitats regulations"), to consider whether it was necessary to undertake an "appropriate assessment" of the implications of the development for the Lee Valley SPA (ground 3)?
The proposal and the council's decision
Valley Grown Nurseries had submitted two previous applications for similar proposals, in June 2011 and in December 2011. The council had refused both, against the recommendation of its officers. Valley Grown Nurseries' appeal to the Secretary of State against the refusal of the first was dismissed by an inspector in a decision letter dated 6 June 2012. The proposal with which we are concerned was submitted to the council on 27 November 2013. The proposed glasshouse would extend partly into Langridge Scrape – a shallow artificial lake at the south-western end of the site, created when the land was restored after being worked for minerals, with a larger lake called Holyfield Lake next to it. These lakes are used by wintering wildfowl, including two species of surface-feeding duck referred to in the designation description for the Lee Valley SPA – the Gadwall (Anas strepera) and the Shoveler (Anas clypeata). Ecological mitigation was proposed; Langridge Scrape was to be reshaped and a new pond created to the north of the site, providing a net increase in habitat for Gadwall and Shoveler. As on the previous two occasions, Natural England, when consulted by the council under regulation 61 of the Habitats regulations, did not object to the proposal and recommended the imposition of conditions to secure the ecological mitigation.
The application was considered by the council's District Development Control Committee on 20 March 2014, in the light of a report prepared by Ms Jill Shingler, a Principal Planning Officer. She acknowledged that the proposal was "contrary to the adopted policies of the Local Plan" (paragraph 1 of her report). Having listed many policies in the Epping Forest District Local Plan and Alterations (adopted by the council in 2006), and also several saved polices of the Epping Forest District Local Plan (adopted in 1998), she said the "above policies are broadly consistent with [the NPPF] and are therefore afforded full weight" (paragraph 13). She then identified 11 "main considerations", considered each in turn, and in her "Conclusion" weighed the benefits of the proposed development for the local economy against its conflict with the development plan and the harm it would cause to the Lee Valley Regional Park and to the landscape. She concluded that the proposal should be approved, and recommended that planning permission be granted. The committee accepted that recommendation and resolved to grant conditional planning permission, subject to a planning obligation under section 106 of the Town and Country Planning Act 1990. The application was then referred to the Secretary of State, who, on 2 May 2014, indicated that he did not wish to intervene. The planning permission granted by the council on 21 August 2014 was subject to 26 conditions. Four of these – conditions 7, 8, 11 and 12 – related to the proposed ecological mitigation measures, as did clause 5 of the section 106 obligation.
National policy for the Green Belt
In England, the Government's policies for the Green Belt are in paragraphs 79 to 92 of the NPPF, which was published in March 2012. These policies replaced Planning Policy Guidance 2: "Green Belts" of January 1995 ("PPG2").
Paragraph 79 of the NPPF says that "[the] fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open", and that "the essential characteristics of Green Belts are their openness and their permanence". 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 (see, for example, the judgment of Sullivan J., as he then was, in R. (on the application of Heath and Hampstead Society) v Camden London Borough Council[2007] EWHC 977 (Admin), at paragraphs 21, 22, 37 and 38; and the first instance judgment of Green J. in R. (on the application of Timmins) v Gedling Borough Council[2014] EWHC 654 (Admin), at paragraphs 26 and 68 to 75).Paragraph 80 of the NPPF says the Green Belt serves five purposes, the first of which is "to check the unrestricted sprawl of large built-up areas", the third "to assist in safeguarding the countryside from encroachment". Paragraph 81 says "local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities for outdoor sport and recreation; to retain and enhance landscapes, visual amenity and biodiversity; or to improve damaged and derelict land".
The following paragraphs contain a series of policies for plan-making and development control.Paragraphs 87 to 92 are largely concerned with the making of decisions on proposals for development in the Green Belt.Paragraphs 87, 88 and 89 state:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
• buildings for agriculture and forestry;
• provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
• the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
• the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
• limited infilling in villages, and limited affordable housing for local...
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