“55 Other than in the case of development on previously developed land or grey belt land, where development is not inappropriate.”
“…is one of the essential characteristics of Green Belts and, as a matter of policy, the aim of preserving the openness of the Green Belt cannot be compromised by development that is ‘not inappropriate’. Moreover, footnote 55 of the Framework establishes that substantial weight need not be given to any harm to openness on a grey belt site where the development is ‘not inappropriate’.” (Emphasis added)
“The overall effect of these works is that the rural character of the site has been fundamentally altered, creating a far more developed appearance. The changing character of the site is very obvious from the road and the mobile homes are easily seen through the site entrance. Thus, there is clear harm to the rural character and appearance of the site and locality. The harm is limited to a degree by the hedgerow that has been retained along most of the site frontage, and this could be supplemented by further planting to reduce the impact of the development. Nevertheless, harm I have found leads to conflict with the aims for character, design and the landscape in local plan policies EN 4, EN 8 and H5.”
“30 Turning to the question of supply, it is important to note that sites must be deliverable. Footnote 4 of the PPTS advises that 'To be considered deliverable, sites should be available now, offer a suitable location for development, and be achievable with a realistic prospect that development will be delivered on the site within five years. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within 5 years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans'. 31 The Council claims a total of 69 pitches. However, more than half of this figure – 35 pitches – is made up of current planning applications. As the Council accepted at the hearing, it is unable to say if planning permission will be granted for these. Consequently, these sites do not meet the definition of ‘deliverable’ in footnote 4.”
“46. Viewed as a whole, the adverse impacts of the development do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, as described in Paragraph l1(d) of the Framework. Accordingly, the presumption in favour of sustainable development applies. This is a material consideration that leads me to conclude that, notwithstanding the conflict with the development plan, planning permission should be granted.”
“16 I have had regard to the matters raised regarding the effect of the development in terms of openness. However, openness is one of the essential characteristics of Green Belts and, as a matter of policy, the aim of preserving the openness of the Green Belt cannot be compromised by development that is ‘not inappropriate’” (Emphasis added)
“7 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”
“17 Mr Rudd relied upon a section of the judgment of Green J sitting at first instance in R (Timmins) v Gedling Borough Council[2014] EWHC 654 (Admin) at [67]-[78], in which the learned judge addressed the question of the relationship between openness of the Green Belt and visual impact. Green J referred to the judgment of Sullivan J in R (Heath and Hampstead Society) v Camden LBC[2007] EWHC 977 (Admin);[2007] 2 P&CR 19 , which related to previous policy in relation to the Green Belt as set out in Planning Policy Guidance 2 (“PPG 2”), and drew from it the propositions that “there is a clear conceptual distinction between openness and visual impact” and “it is therefore wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact”: para.[78] (Green J’s emphasis). The case went on appeal, but this part of Green J’s judgment was not in issue on the appeal:[2015] EWCA Civ 10 ;[2016] 1 All ER 895 . 18 In my view, Green J went too far and erred in stating the propositions set out above. This section of his judgment should not be followed. There are three problems with it. First, with respect to Green J, I do not think that he focuses sufficiently on the language of section 9 of the NPPF, read as part of the coherent and self-contained statement of national planning policy which the NPPF is intended to be. The learned judge does not consider the points made above. Secondly, through his reliance on the Heath and Hampstead Society case Green J has given excessive weight to the statement of planning policy in PPG 2 for the purposes of interpretation of the NPPF. He has not made proper allowance for the fact that PPG 2 is expressed in materially different terms from section 9 of the NPPF. Thirdly, I consider that the conclusion he has drawn is not in fact supported by the judgment of Sullivan J in the Heath and Hampstead Society case.” (Emphasis added).
“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt, including harm to its openness.”
“22 The correct approach to the interpretation of a statutory development plan was discussed by this court in Tesco Stores Ltd v Dundee City Council (ASDA Stores Ltd intervening)[2012] PTSR 983 . Lord Reed JSC rejected a submission that the meaning of the development plan was a matter to be determined solely by the planning authority, subject to rationality. He said, at para 18: “The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others . . . policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."" He added, however, at para 19, that such statements should not be construed as if they were statutory or contractual provisions: “Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment[1995] 1WLR 759 , 780per Lord Hoffmann)."" 23 In the present appeal these statements were rightly taken as the starting point for consideration of the issues in the case. It was also common ground that policies in the Framework should be approached in the same way as those in a development plan. … 25 It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light…” (Emphasis added)
“74 The guidance given by the Framework is not to be interpreted as if it were a statute. Its purpose is to express general principles on which decision-makers are to proceed in pursuit of sustainable development (paras 6—10) and to apply those principles by more specific prescriptions such as those that are in issue in these appeals. 75 In my view, such prescriptions must always be interpreted in the overall context of the guidance document. That context involves the broad purpose of the guidance and the particular planning problems to which it is directed. Where the guidance relates to decision-making in planning applications, it must be interpreted in all cases in the context ofsection 70(2) of the Town and Country Planning Act 1990 andsection 38(6) of the Planning and Compulsory Purchase Act 2004 , to which the guidance is subordinate. While the Secretary of State must observe these statutory requirements, he may reasonably and appropriately give guidance to decision-makers who have to apply them where the planning system is failing to satisfy an unmet need. He may do so by highlighting material considerations to which greater or less weight may be given with the over-riding objective of the guidance in mind. It is common ground that such guidance constitutes a material consideration: Framework, paragraph 2.” (Emphasis added)
“34. The principles governing the interpretation of planning policies – whether in statements of national planning policy such as the NPPF and the PPG or in development plans – are well known. 35. The distinction between policy interpretation and policy application is important (see the judgment of Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government[2017] UKSC 37 ; [2017] 1 W.L.R. 1865, at paragraph 26). Interpretation of policy is an activity for judges. Policy-making obviously is not. Nor, of course, is the application of policy in the making of planning decisions. The meaning of the words in a policy produced by the Secretary of State or by a local planning authority is for the court to establish, as a matter of law (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 to 20, and the judgment of Lord Carnwath in Hopkins Homes, at paragraph 23). But the use of the policy in determining applications for planning permission and appeals is for the decision-maker, subject only to review by the court on public law grounds. 36. Interpreting a planning policy ought not to be a difficult task, but straightforward (see the leading judgment in R. (on the application of Corbett) v Cornwall Council[2022] EWCA Civ 1069 , at paragraph 19). It should not generally involve the kind of linguistic precision the court would bring to the interpretation of a statute or contract. Construing the language in the policy should not require it to be dismantled and reconstructed, or a gloss imposed upon it, or resort to paraphrase. One can expect the purpose of the policy to be clear from its own provisions, given their ordinary meaning and read in their context. Policies should be stated in plain terms, easy to understand for those affected by decisions made in accordance with them, and capable of being applied with realism and common sense. Mostly they are. 37. The court should respect the policy-maker’s choice of words in formulating the policy as it stands. As a general rule, the temptation to infer terms the policy-maker has not actually used should be resisted. The court will sometimes be able to conclude that the words of the policy mean exactly what they say, nothing more and nothing less. It should not hesitate to do this if it can. 38. A more sophisticated approach has obvious risks. By going further than it needs in volunteering views of its own upon the meaning of a policy, the court may find itself drawn, unintentionally, towards the role of policy-maker. If a policy is ambiguous or incomplete, it is for the policy-maker to put that right, either by reformulating the policy when it can or by issuing guidance on its application. That is not a job for judges. Another risk is that the court – again without intending it – may obscure the true meaning of the words the policy-maker has used. This is liable to weaken the policy as a means of improving consistency in planning decisions. Many planning policies – including those in the NPPF – cover a wide range of circumstances. Many are framed in broad terms (see the judgment of Lord Carnwath in Hopkins Homes, at paragraph 24). Many require the exercise of planning judgment in their application. An interpretation tailored too closely to the facts of a particular case may not fit the facts of another (see the judgment of Holgate J., as he then was, in Gladman Developments Ltd. v Secretary of State for Communities and Local Government[2020] EWHC 518 (Admin) , at paragraph 99, upheld in this court[2021] EWCA Civ 104 ). The policy itself could then be compromised and its use unduly constrained.”
“15. I cannot accept that argument. As Ms Megan Thomas for the council and Mr Village for Valley Grown Nurseries submitted, it does not represent the correct interpretation of the policies in paragraphs 87, 88 and 89 of the NPPF, read properly in their context. 16. The interpretation of planning policy is ultimately the task of the court, not the decision-maker. Policies in a development plan must be construed “objectively in accordance with the language used, read as always in its proper context”, and “not … as if they were statutory or contractual provisions” (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council[2012] UKSC 13 , with which the other members of the Supreme Court agreed, at paragraphs 18 and 19). The same principles apply also to the interpretation of national policy, including policies in the NPPF (see, for example, the judgment of Richards L.J. in Timmins, at paragraph 24). 17. The first sentence of paragraph 88 of the NPPF [now the first sentence of [153] of the 2024 version] must not be read in isolation from the policies that sit alongside it. The correct interpretation of it, I believe, is that a decision-maker dealing with an application for planning permission for development in the Green Belt must give “substantial weight” to “any harm to the Green Belt” properly regarded as such when the policies in paragraphs 79 to 92 are read as a whole (consistent with the approach taken, for example, in the judgment of Sullivan L.J., with whom Tomlinson and Lewison L.JJ. agreed, in Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government [2015] P.T.S.R. 274, at paragraph 18). Reading these policies together, I think it is quite clear that “buildings for agriculture and forestry”, and other development that is not “inappropriate” in the Green Belt, are not to be regarded as harmful either to the openness of the Green Belt or to the purposes of including land in the Green Belt. This understanding of the policy in the first sentence of paragraph 88 does not require one to read into it any additional words. It simply requires the policy to be construed objectively in its full context – the conventional approach to the interpretation of policy, as the Supreme Court confirmed in Tesco v Dundee City Council. 18. A fundamental principle in national policy for the Green Belt, unchanged from PPG2 to the NPPF, is that the construction of new buildings in the Green Belt is “inappropriate” development and should not be approved except in “very special circumstances”, unless the proposal is within one of the specified categories of exception in the “closed lists” in paragraphs 89 and 90. There is “no general test that development is appropriate provided it preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt” (see the judgment of Richards L.J. in Timmins, at paragraphs 30 and 31). The distinction between development that is “inappropriate” in the Green Belt and development that is not “inappropriate” (i.e. appropriate) governs the approach a decision-maker must take in determining an application for planning permission. “Inappropriate development” in the Green Belt is development “by definition, harmful” to the Green Belt – harmful because it is there – whereas development in the excepted categories in paragraphs 89 and 90 of the NPPF is not. The difference in approach may be seen in the policy in paragraph 87. It is also apparent in the second sentence of paragraph 88, which amplifies the concept of “very special circumstances” by explaining that these 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”
“… The text of the policy has been reorganised …, but all of its essential characteristics – “inappropriate development is, by definition, harmful to the Green Belt”, so that it “should not be approved except in very special circumstances”, which “will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”, and the “substantial weight” which must be given to “harm to the Green Belt” – remain the same.” 23. But I also think that the argument Mr Jones founded on his distinction between “definitional harm” and “actual harm” fails on its own logic. It means that the construction of agricultural buildings in the Green Belt, though always appropriate, must nevertheless always be regarded as harmful both to the openness of the Green Belt and to the purposes of including land within the Green Belt – despite such harm being irrelevant to their appropriateness. And if applied to the second and sixth categories of exception identified in paragraph 89, it would also mean that, for example, a proposed building for outdoor sport or recreation or a proposed redevelopment of a previously developed site could qualify as appropriate development – because it was found to preserve the openness of the Green Belt and not to conflict with the purposes of including land within the Green Belt – and yet still be regarded as substantially harmful to the Green Belt – because it reduced the openness of the Green Belt and conflicted with the purposes of including land within it. I do not think that can be right. 24. The true position surely is this. Development that is not, in principle, “inappropriate” in the Green Belt is, as Dove J. said in paragraph 62 of his judgment, development “appropriate to the Green Belt”
“… it is quite clear that “buildings for agriculture and forestry”, and other development that is not “inappropriate” in the Green Belt, are not to be regarded as harmful either to the openness of the Green Belt or to the purposes of including land in the Green Belt.”
“7 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”
“Green J went too far and erred in stating the propositions set out above. This section of his judgment should not be followed.”
“… At any rate, Sullivan J [in Heath & Hampstead Society] does not say that the openness of the Green Belt has no visual dimension. Hence I think that Green J erred in Timmins in taking the Heath and Hampstead Society case to provide authority for the two propositions he sets out at para.[78] of his judgment, to which I have referred above.”
“23 It seems surprising in retrospect that the relationship between openness and visual impact has sparked such legal controversy. Most of the authorities to which we were referred were concerned with the scope of the exceptions for buildings in paragraph 89 (or its predecessor). In that context it was held, unremarkably, that a building which was otherwise inappropriate in Green Belt terms was not made appropriate by its limited visual impact (see R (Heath & Hampstead Society) v Camden London Borough Council[2007] 2 P & CR 19 , upheld at R (Heath & Hampstead Society) v Vlachos[2008] 3 All ER 80 ). As Sullivan J said in the High Court: “The loss of openness (i e unbuilt on land) within the Green Belt or Metropolitan Open Land is of itself harmful to the underlying policy objective. If the replacement dwelling is more visually intrusive there will be further harm in addition to the harm by reason of inappropriateness…” (para 22). To similar effect, in the Lee Valley case [2016] Env LR 30, Lindblom LJ said: “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 …” (para 7, cited by him in his present judgment at para 19). 24 Unfortunately, in Timmins v Gedling Borough Council [2014] EWHC654 (Admin) (a case about another familiar Green Belt category—cemeteries and associated buildings), Green J went a stage further holding, not only that there was “a clear conceptual distinction between openness and visual impact”, but that it was: “wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact” (para 78, emphasis in original). 25 This was disapproved (rightly in my view) in Turner v Secretary of State for Communities and Local Government[2017] 2 P & CR 1 , para 18.”
“40 Lindblom LJ criticised the officer’s comment that openness is “commonly” equated with “absence of built development”
“3.2 Inappropriate development is by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.” (Emphasis added)
“…Paragraph 3.2 of PPG2 was quite explicit. In view of the presumption against “inappropriate development” the Secretary of State would, it said, attach “substantial weight to the harm to the Green Belt” when considering proposals for “such development” – i.e. “inappropriate development”, as opposed to all development whether “inappropriate” or not. If the Government had meant to abandon that distinction between “inappropriate” and appropriate development, one would have expected so significant a change in national policy for the Green Belt to have been announced.”
“It can thus be seen that national planning policy relating to the Green Belt permits any form of development where that is justified by very special circumstances; and it also describes as “not inappropriate” the various types of development described in paras 145 and 146 [of the then version of the NPPF]. Relevantly, those expressly mentioned types of development include the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, changes of use for outdoor sport, limited infilling in villages, and limited affordable housing for local communities. But even in those cases para.144 requires that planning authorities give “substantial weight” to any harm to the Green Belt.”
“How should harm to the Green Belt including harm to its openness be considered if a development is not inappropriate development? Footnote 55 to the NPPF sets out that if development is considered to be not inappropriate development on previously developed land or grey belt, then this is excluded from the policy requirement to give substantial weight to any harm to the Green Belt, including to its openness. This is consistent with rulings from the courts on these matters that, where development (of any kind, now including development on grey belt or previously developed land) is not considered to be inappropriate in the Green Belt, it follows that the test of impacts to openness or to Green Belt purposes are addressed and that therefore a proposal does not have to be justified by “very special circumstances”. (emphasis added).”
“To be considered deliverable, sites should be available now, offer a suitable location for development, and be achievable with a realistic prospect that development will be delivered on the site within five years. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within 5 years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.”
“The Council claims a total of 69 pitches. However, more than half of this figure - 35 pitches - is made up of current planning applications. As the Council accepted at the hearing, it is unable to say if planning permission will be granted for these. Consequently, these sites do not meet the definition of 'deliverable' in footnote 4.”
“128. The Council conducted a Gypsy and Traveller Accommodation Assessment (GTAA) in 2018, updated in 2021 [EDI4, EDI5]. Those assessments were based on a sound methodology, which accords with Planning Policy for Traveller Sites. Together, they concluded a need for 32 pitches in the District for households meeting the planning definition; indicating that 18 are needed within the first five years of the Plan period. 129. The GTAA also identifies a need for 20 pitches for gypsy and traveller households who do not meet the planning definition. Taking the two groups together therefore, the need is for 52 pitches over the Plan period, 36 of which are needed in the first five years of the Plan [ED71]. 130. Existing commitments, and deliverable site allocations would deliver 32 pitches in the first five years of the Plan period, 45 pitches over the whole Plan period. That would result in a small shortfall, both within the first five years and over the whole Plan period. 131. Policy H5 includes a criteria based policy to assess windfall development. Windfall sites come forward approximately once every six months [i.e. at the rate of two per year]. Based on historic windfall and an assessment of a theoretical intensification of existing gypsy and traveller sites, even taking a small proportion of that allowance, the outstanding gypsy and traveller need for both those meeting the planning definition and those not meeting it would be met. In the absence of the supply of additional identified sites, this is a sound and justified approach. It is consistent with the approach taken to housing need for the settled community, the need for which is not met in full. 132. A need for 6 pitches/plots for travelling show people is also identified in the GTAA. The search for sites has not yielded a suitable candidate. However, the criteria based policy included in policy H5, will enable windfall development to come forward. 133. Taking all these considerations into account, given existing commitments and a realistic windfall allowance, together with the inclusion of a criteria based policy to assess future proposals for gypsy and traveller and travelling show people’s accommodation, in the absence of provision to meet the full need through the Plan’s site allocations, this is a justified approach and is soundly based.”
“Before the close of the "adversarial” part of the proceedings, the Secretary of State and his inspectors can normally rely, not unreasonably, on participants to draw attention to any relevant decision[, but] that does not mean that they are never required to make further inquiries about any matter, including about other . . . decisions that may be significant.”