Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Lindblom |
| Judgment Date | 16 March 2018 |
| Neutral Citation | [2018] EWCA Civ 489 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/0829 |
| Date | 16 March 2018 |
[2018] EWCA Civ 489
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE HICKINBOTTOM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Lord Justice Lindblom
Case No: C1/2017/0829
Mr Peter Village Q.C. and Mr Ned Helme (instructed by Pinsent Masons LLP) for the Appellants
Ms Nathalie Lieven Q.C. and Ms Hannah Gibbs (instructed by North Yorkshire County Council) for the First Respondent
Mr Jonathan Easton (instructed by Walker Morris LLP) for the Second Respondent
Hearing date: 19 December 2017
Introduction
Did a mineral planning authority misapply government policy for “mineral extraction” in the Green Belt when determining an application for planning permission for an extension to a limestone quarry in North Yorkshire? That is the basic question in this appeal.
The appellants, Samuel Smith Old Brewery (Tadcaster) and Oxton Farm, appeal against the order of Hickinbottom J., as he then was, dated 7 March 2017, dismissing their claim for judicial review of the planning permission granted by the first respondent, North Yorkshire County Council, in September 2016, for an extension to the operational face of Jackdaw Crag Quarry, a magnesian limestone quarry owned and operated by the second respondent, Darrington Quarries Ltd.. The quarry, which extends to about 25 hectares, is in the Green Belt, about 1.5 kilometres to the south-west of Tadcaster. It has been operated by Darrington Quarries for many years, planning permission for the extraction of limestone having first been granted in July 1948 and subsequently renewed.
The proposal here was submitted as an application for planning permission in October 2009. Approval was sought for an extension of about six hectares, which was expected to yield about two million tonnes of crushed rock over a period of seven years. Planning permission was granted on 7 January 2013, but later quashed for failings in the environmental impact assessment. The application eventually came back to the county council's Planning and Regulatory Functions Committee on 9 February 2016. In her report to committee the county council's Corporate Director – Business and Environmental Services recommended that planning permission be granted, and the committee accepted that recommendation. After a section 106 agreement was entered into, planning permission was granted on 22 September 2016.
Samuel Smith and Oxton Farm challenged the planning permission on the grounds that the officer misdirected the committee on the policy for minerals development in the Green Belt in paragraph 90 of the National Planning Policy Framework (“the NPPF”), so that the committee approached its decision, wrongly, on the basis that the proposal was not for “inappropriate development” in the Green Belt and did not have to be justified by “very special circumstances”. Hickinbottom J. rejected that argument. Samuel Smith and Oxton Farm appealed on the basis that he was wrong to do so. Lewison L.J. granted permission to appeal on 17 May 2017.
The issues in the appeal
The appeal raises the same four issues as were dealt with in the court below, namely:
(1) whether, in assessing the likely effect of the proposed development on the “openness” of the Green Belt, the county council's committee erred in failing to consider its visual impact on the Green Belt;
(2) whether, in particular, the officer misled the committee in confining herself to the absence of “built” development as a relevant criterion of “openness”;
(3) whether the officer's report was inconsistent in its conclusions on the likely impact of the development on “openness”; and
(4) whether the officer misled the committee in advising that because the proposed development would adjoin the existing quarry, it would not be in conflict with the aim of preserving “openness”.
NPPF policy for the Green Belt
Paragraph 17 of the NPPF includes, as the fifth in the list of 12 “core land-use planning principles”, the principle that “planning should”, among other things, “take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them …”.
In section 9 of the NPPF, “Protecting Green Belt land”, paragraph 79 declares that “[the] fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence”. Paragraph 80 refers to the “five purposes” served by the Green Belt: first, “to check the unrestricted sprawl of large built-up areas”; second, “to prevent neighbouring towns merging into one another”; third, “to assist in safeguarding the countryside from encroachment”; fourth, “to preserve the setting and special character of historic towns”; and fifth, “to assist in urban regeneration, by encouraging the recycling of derelict and other urban land”. Paragraph 81 says local planning authorities “should plan positively” to do several things in the Green Belt, including “to retain and enhance landscapes [and] visual amenity”. Paragraph 85, which indicates the approach to be adopted in defining Green Belt boundaries, says, among other things, that local planning authorities should “not include land which is unnecessary to keep permanently open”.
The policies for development control in the Green Belt include these (in paragraphs 87 to 90):
“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 community needs under policies set out in the Local Plan; or
• limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
• mineral extraction;
• engineering operations;
• local transport infrastructure which can demonstrate a requirement for a Green Belt location;
• the re-use of buildings provided that the buildings are of permanent and substantial construction; and
• development brought forward under a Community Right to Build Order.”
Development plan policy
When planning permission was granted for Darrington Quarries' proposal, the relevant provisions of the development plan included several policies of the Selby District Core Strategy Local Plan, adopted in 2013. Policy SP3, “Green Belt”, replicated the fundamental principle in paragraph 87 of the NPPF – that inappropriate development in the Green Belt will not be approved unless the applicant has demonstrated “very special circumstances”. Policy SP13, “Scale and Distribution of Economic Growth”, stated, in paragraph D, that “development should be sustainable and be appropriate in scale and type to its location, not harm the character of the area, and seek a good standard of amenity”. Policy SP18, “Protecting and Enhancing the Environment”, which corresponds broadly to the policy in paragraph 109 of the NPPF, said that “[the] high quality and local distinctiveness of the natural and man-made environment will be sustained by” several specific means. These included “1. Safeguarding and, where possible, enhancing the historic and natural environment including the landscape character and setting of areas of acknowledged importance”, and “5. Identifying, protecting and enhancing locally distinctive landscapes, areas of tranquillity, public rights of way and access, open spaces and playing fields through Development Plan Documents”.
The officer's report to committee
In section 4 of her report, “Consultations”, the officer referred to the consultation response of the county council's Principal Landscape Architect on the “Potential Landscape Impacts” (in paragraphs 4.109 to 4.118).
As reported by the officer, that response contained a number of observations about the likely visual effects of the development, including these: that “the change in character would be permanent …”, and “although the restored landscape may well be of considerable landscape and visual interest in itself, the quality of the Locally Important Landscape Area as a whole would be compromised”...
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