Borough council loses Court of Appeal case amid fears of 'garden-grabbing'

Dartford Borough Council has lost an appeal over whether a site in the Green Belt should be considered ‘previously developed land’ (often called ‘brownfield land’), amid fears that the ruling could lead to more ‘garden-grabbing’.

In Dartford Borough Council v The Secretary of State for Communities and Local Government & Ors [2017] EWCA Civ 141 a planning inspector had on 23 July 2015 allowed an appeal against the refusal by the council to grant planning permission for a change of use of land to a private gypsy and traveller caravan site comprising one mobile home and one touring caravan.

The site in question is within the residential curtilage of Shirehall Farm, which is within the Green Belt and is not in a built-up area.

The inspector had decided that the site qualified as ‘previously developed land’ because:

i) It was within the curtilage of a permanent structure (namely Shirehall Farm) and

ii) It was not excluded as "land in built-up areas such as private residential gardens, parks, recreation grounds and allotments".

Dartford challenged the second but not the first reason.

The sole issue in the case was the meaning of "previously developed land" as defined by the glossary forming part of the National Planning Policy Framework (NPPF).

The definition in the NPPF is: "Previously developed land: Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time."

The council’s argument was that all private residential gardens are excluded from the definition of previously developed land, whether or not they are in a built-up area. Any other interpretation, it was contended, would give rise to conflicting policies within the NPPF.

The Court of Appeal, comprising Lady Justice Gloster and Lord Justice Lewison, dismissed Dartford’s appeal.

Lewison LJ, with whom Gloster LJ agreed, said: “Like a development plan document, the NPPF is also full of broad statements of policy; and it would be crying for the moon to start the process of interpretation with the idea that there is no tension between statements of policy pulling in different directions.”

The judge said the starting point was the words themselves read as a matter of ordinary English. The critical words in this case were: "land in built-up areas such as private residential gardens, parks, recreation grounds and allotments".

Lord Justice Lewison said: “In my judgment the words ‘such as’ state clearly that what follows are examples of something. Examples of what? They can only be examples of the more general expression that precedes them, namely ‘land in built-up areas’. As a matter of ordinary English I cannot see that any other meaning can be given to this sentence. ‘Land in built-up areas’ cannot mean land not in built-up areas.

“It is argued that this interpretation means that other parts of the NPPF are in conflict with each other. Even if that were true it is not the business of an interpreter to go searching for possible ambiguities or conflicts in order to detract from the obvious meaning of the words to be interpreted. “

The judge said the alleged conflict within the NPPF upon which counsel for Dartford (Ashley Bowes of Cornerstone Barristers) relied was the juxtaposition of two of the core planning principles in paragraph 17 of the NPPF, and a conflict between paragraphs 14, 55 and 111.

Lord Justice Lewison noted that paragraph 17 provides that twelve core principles should underpin both plan making and decision taking, and that two of those principles were:

"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, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it;" and

"encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value;"

“There is in truth no conflict between these two core principles, as is demonstrated by the more detailed policies about the Green Belt,” he said. “Paragraph 87 of the NPPF states that: ‘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.’

“Paragraph 89 goes on to say that a local planning authority should regard the construction of new buildings as inappropriate in the Green Belt. But that general policy is immediately qualified by exclusions, one of which is: ‘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.’ (Emphasis added by the judge)

Accordingly, Lord Justice Lewison said, the NPPF accommodates the definition of previously developed land within the general policy about development in the Green Belt. “If a new building is a partial redevelopment of a previously developed site it is not to be regarded as inappropriate redevelopment in the Green Belt, provided that it has no greater impact on the openness of the Green Belt than the existing development. The proviso also means that the encouragement of development on brownfield land is not, at least in the Green Belt, unqualified. So any possible tension is resolved.”

The judge also said that he did not see any conflict either between the definition and paragraphs 55 or 111 of the NPPF.

Paragraph 55 states that: "Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances…"

However, Lord Justice Lewison said, the definition of previously developed land, in the context of the Dartford case, takes as its starting point that the proposed development is within the curtilage of an existing permanent structure.

“It follows that a new dwelling within that curtilage will not be an ‘isolated’ home. There will already be a permanent structure on the site,” he said.

Lord Justice Lewison pointed to what paragraph 111 states, namely that: "Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value."

The judge said: “This paragraph expressly adopts the expression ‘previously developed land’ and I cannot see that there is any conflict in so doing.”

Counsel for Dartford also sought to rely on statements made by the Planning Minister when introducing changes to previous versions of planning policy.

But Lord Justice Lewison said: “In my judgment it would be quite wrong to expect the public, for whose benefit the NPPF is published, or indeed a would-be developer, to have to undertake the investigation of previous iterations of government planning policy in order to understand the NPPF, let alone ministerial statements introducing previous iterations of policy. Indeed that would defeat one of the main purposes of promulgating the NPPF in the first place.”

He concluded that he did not consider that statements made by ministers about previous iterations of policy could detract from the clear words of the definition of previously developed land.