Council fails in court challenge over replacement of buildings and Green Belt

A council has lost a High Court challenge over whether the replacement of a group of buildings by a single building that was not materially larger than those it replaced was capable of falling within an exception in the National Planning Policy Framework.

Paragraph 89 of the NPPF contains exceptions to the position that new buildings in the Green Belt constitute inappropriate development.

One of these exceptions is “the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces”.

Tandridge District Council challenged the decision of a planning inspector to allow the replacement of a house, garage, outbuilding and two sheds with a single building on the basis that it was not materially larger than the group of buildings it replaced.

The local authority argued that the use of the singular ‘building’ in the fourth bullet point of paragraph 89 and the reference to ‘the one it replaces’ meant that the exception could only apply to the replacement of a single building by a single building.

However, David Elvin QC, sitting as a deputy High Court judge, has held that the exception in paragraph 89 did not only apply to the replacement of a single building by a single building, but was capable of applying to the replacement of a group of buildings by a single building, provided the new building was in the same use and was not materially larger that those which it replaced.

According to barristers Francis Taylor Building, the judge concluded that the underlying purpose of Green Belt policy was to preserve the openness of the Green Belt and the words in paragraph 89 should be construed having regard to that purpose. In certain circumstances the openness of the Green Belt would be better protected by treating the replacement of a number of buildings with a single building as not inappropriate development.

FTB’s Isabella Tafur appeared for the Secretary of State for Communities and Local Government.