Mineral extraction in the Green Belt

The Court of Appeal finds that visual effects must be considered when assessing whether openness is preserved, write Peter Village QC and Ned Helme.

The Court of Appeal has allowed the appeal in the case of R (Samuel Smith Old Brewery (Tadcaster) and Oxton Farm) v North Yorkshire County Council and Darrington Quarries Ltd [2018] EWCA Civ 489.

The case involved a challenge to a planning permission for a 6 hectare quarry extension in the Green Belt, which would lead to an increase in the existing quarry area of approximately 24% and produce around 2 million tonnes of crushed rock over a period of 6-7 years (with a rate of extraction of around 300,000 tonnes per annum). Darrington did not suggest that the proposal was justified by “very special circumstances” for the purposes of paragraphs 87 and 88 of the National Planning Policy Framework (“NPPF”) but contended that the proposal came within the “mineral extraction” exception under paragraph 90 of the NPPF and was therefore not “inappropriate development” in the Green Belt. The council agreed and granted planning permission.

The Appellants challenged the planning permission, contending that the council had fundamentally misconstrued and misapplied paragraph 90 of the NPPF including by failing to take into account visual impacts when considering whether the proposal would “preserve the openness of the Green Belt” for the purposes of the proviso to paragraph 90.

In the High Court, Hickinbottom J (as he then was) accepted that the council had not taken visual effects into account in the context of potential impacts on openness but dismissed the claim on the basis that the council had not been legally required to do so (or alternatively that had such effects been taken into account, the conclusion that openness would be preserved would have been the same) and that there were no other defects in the decision.

The Appellants appealed and the Court of Appeal allowed their appeal. Lord Justice Lindblom (with whom Lord Justice Lewison agreed) held (at [40]) that:

“… when the development under consideration is within one of the five categories in paragraph 90 and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would “preserve the openness of the Green Belt”. Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law.”

Lord Justice Lindblom went on to find that it was clear that the council had committed such an error in this case. The council had limited its consideration of the effects of the proposed development on the openness of the Green Belt to spatial impact and nothing more, despite the fact that, on the council’s own assessment of the likely effects of the development on the landscape, visual impact on openness was “quite obviously” relevant to its effect on the openness of the Green Belt. Had that error not occurred, the decision “might very well have been different”. Indeed, Lord Justice Lindblom went so far as to suggest that the conclusion that openness was preserved was a “somewhat surprising conclusion – to say nothing more” and to note that “how it could be said that mineral extraction on this ‘scale’ would ‘preserve’ the openness of the Green Belt, whether or not as an extension to an existing quarry, is by no means clear – though it might conceivably do so”. That was not a matter the Court needed to resolve, the council’s error in misconstruing and misapplying paragraph 90 so as to exclude consideration of visual effects on openness being sufficient to vitiate its decision, though it is clearly a matter that the council will need to consider carefully on re-determining Darrington’s application in the light of the Court of Appeal’s judgment.

The Court of Appeal’s judgment can be found by clicking here and the High Court’s judgment can be found by clicking here.

Peter Village QC and Ned Helme of 39 Essex Chambers were instructed by Matthew Baker of Pinsent Masons LLP.