[2025] EWHC 2127 (Admin)

As the Claimant’s principal argument rests heavily on the effect or otherwise of the Court of Appeal’s judgement in Lee Valley, it is necessary to look closely at that judgment and those that have looked at it since. However, before doing so, I set out the principles applicable when interpreting policies such as the NPPF.

The Supreme Court in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017 1 WLR 1865 identified the correct approach:

“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)

The imperative not to treat guidance contained in the NPPF as if it were a statute was reiterated in the same case by Lord Gill:

“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 of section 70(2) of the Town and Country Planning Act 1990 and section 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)

More recently in R (Tesco Stores Ltd) v Stockport MBC [2025] EWCA Civ 610, Lindblom LJ said as follows:

“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.”

The relevant policy here is the NPPF 2024, the pertinent provisions of which have been set out above. In Lee Valley, the Court of Appeal considered whether the authority had erred in granting planning permission in respect of a proposed development involving the construction of a very large glasshouse on Green Belt land close to the Lee Valley Special Protection Area. The claimant in that case, a regional park authority, argued that even if development was appropriate such that there was no definitional harm, there could still be actual harm to openness. The High Court (Dove J) and the Court of Appeal rejected that approach. It is helpful first to consider the argument presented by the claimant on that occasion, as set out by Lindblom LJ at [14]:

14.

…[Counsel submitted that the] expression “any planning application” in the first sentence of paragraph 88 of the NPPF means any application for planning permission for development in the Green Belt, whether “inappropriate” or not, and the words “any harm to the Green Belt” mean every possible kind of harm to the Green Belt, including harm to its “openness” and to the purposes of including land in the Green Belt, even if the development is not “inappropriate”. The policies in paragraphs 79, 80 and 81 of the NPPF are relevant in decision-making on proposals for agricultural buildings in the Green Belt, even though such buildings are not “inappropriate” development. Under the NPPF “definitional harm” to the Green Belt is distinct from the “actual harm” caused by a development. Paragraph 88 refers to “harm by reason of inappropriateness and any other harm”. Even if there is no “definitional harm” – because the proposed building is in principle appropriate – it does not follow that there is no “actual harm” to the openness of the Green Belt, or to the purposes of including land in it. Under the policy in paragraph 88, such harm should be given “substantial weight”. This approach applies to proposals for agricultural buildings, even though they are appropriate development in the Green Belt. It was not, however, the approach adopted by the council in this case.”

That argument, which can be seen to bear some similarity to that of Mr Goodman in the present case, was roundly rejected by the Court. It is helpful to set out the Court’s reasoning in full:

“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 corresponding development plan policy in this case is policy GB2A of the local plan.

19.

The category of exception in paragraph 89 with which we are concerned, “buildings for agriculture and forestry”, is entirely unqualified. All such buildings are, in principle, appropriate development in the Green Belt, regardless of their effect on the openness of the Green Belt and the purposes of including land in the Green Belt, and regardless of their size and location. Each of the other five categories is subject to some proviso, qualification or limit. Two of them – the second, relating to the “provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries”, and the sixth, relating to the “limited infilling or the … redevelopment of previously developed sites …” – are qualified by reference both to “the openness of the Green Belt” and to the “purposes of including land within it”. The five categories of development specified in paragraph 90 are all subject to the general proviso that “they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt”.

20.

As Dove J. said (in paragraph 61 of his judgment), the fact that an assessment of openness is “a gateway in some cases to identification of appropriateness” in NPPF policy indicates that “once a particular development is found to be, in principle, appropriate, the question of the impact of the building on openness is no longer an issue”. Implicit in the policy in paragraph 89 of the NPPF is a recognition that agriculture and forestry can only be carried on, and buildings for those activities will have to be constructed, in the countryside, including countryside in the Green Belt. Of course, as a matter of fact, the construction of such buildings in the Green Belt will reduce the amount of Green Belt land without built development upon it. But under NPPF policy, the physical presence of such buildings in the Green Belt is not, in itself, regarded as harmful to the openness of the Green Belt or to the purposes of including land in the Green Belt. This is not a matter of planning judgment. It is simply a matter of policy. Where the development proposed is an agricultural building, neither its status as appropriate development nor the deemed absence of harm to the openness of the Green Belt and to the purposes of including land in the Green Belt depends on the judgment of the decision-maker. Both are inherent in the policy.

21.

If the policy in the first sentence of paragraph 88 [now the first sentence of [153]] of the NPPF meant that “substantial weight” must be given to the effect a proposed agricultural building would have on the openness of the Green Belt and on the purposes of including land within the Green Belt, the policy in paragraph 89 categorizing such buildings as appropriate development in the Green Belt, regardless of such effects, would be negated. This cannot have been the Government's intention.

22.

It would be, in any event, an important but unheralded change from “previous Green Belt policy” in the third sentence of paragraph 3.2 of PPG2 – the equivalent policy in PPG2 to the policy in the first sentence of paragraph 88 of the NPPF. 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. I agree with what Sullivan L.J. said to similar effect in Redhill Aerodrome Ltd. (at paragraphs 16, 17, 21 and 23 of his judgment, which were noted by Richards L.J. in paragraph 24 of his judgment in Timmins). Leading counsel for the respondent in that case had been right not to submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the NPPF. As Sullivan L.J. said (in paragraph 17):

“… 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”. On a sensible contextual reading of the policies in paragraphs 79 to 92 of the NPPF, development appropriate in – and to – the Green Belt is regarded by the Government as not inimical to the “fundamental aim” of Green Belt policy “to prevent urban sprawl by keeping land permanently open”, or to “the essential characteristics of Green Belts”, namely “their openness and their permanence” (paragraph 79 of the NPPF), or to the “five purposes” served by the Green Belt (paragraph 80). This is the real significance of a development being appropriate in the Green Belt, and the reason why it does not have to be justified by “very special circumstances”.

25.

That was the basic analysis underlying the judge's conclusion, with which I agree, “that appropriate development is deemed not harmful to the Green Belt and its [principal] characteristic of openness in particular …”. (Emphasis added)

That analysis, which is clearly intended to be of general application, provides, in my judgment, a complete answer to the Claimant’s principal contention that development which is not inappropriate can give rise to harm to openness and that such harm is to be given at least some weight. That argument simply does not get off the ground in view of the Court’s conclusion that:

“… 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.”

The highlighted words confirm that the Court’s views were not confined to developments amounting to buildings for agriculture and forestry, but extended to any development that is not inappropriate. I therefore reject Mr Goodman’s submission that the ratio in Lee Valley is confined to the former and that the critical passages in the judgment of the Court of Appeal are “tightly focused” on that category of development.

Faced with this hurdle, Mr Goodman now submits that Lee Valley was in effect wrongly decided and should not be followed. He relies upon what is said at [7] of Lee Valley:

“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”. 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 (see, for example, the judgment of Sullivan J, as he then was, in R. (on the application of Heath and Hampstead Society) v Camden London Borough Council [2007] EWHC 977 (Admin), at [21], [22], [37] and [38]; and the first instance judgment of Green J in R. (on the application of Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin), at [26] and [68]–[75])…” (Emphasis added)

It is correct to say that part of the judgment in Timmins has since been disapproved by the Court of Appeal in Turner and the Supreme Court in Samuel Smith. However, it is notable that the passage that was disapproved, i.e. that which appears at [78] of Timmins was not cited by Lindblom LJ in Lee Valley; reference being made there only to “[26] and [68]-[75]” of Timmins.

As Sales LJ said in Turner:

“Green J went too far and erred in stating the propositions set out above. This section of his judgment should not be followed.”

The “propositions” being referred to were 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”, both of which were contained in [78] of Green J’s judgment in Timmins.

Those passages in Timmins upon which Lindblom LJ did rely, i.e. “[26] and [68]-[75]” largely draw upon the judgment of Sullivan J in Heath & Hampstead Society v London Borough of Camden [2007] EWHC 977 (Admin) and which make the unobjectionable point that visual impact can properly be taken into account in assessing whether VSC exist in respect of development that is otherwise inappropriate.

Lindblom LJ did not therefore rely upon those propositions of Green J that were subsequently disapproved.

Mr Goodman’s riposte to this point is that [78] of Timmins is a summary of that which went before and cannot be dissociated from the passages expressly relied upon by Lindblom LJ in Lee Valley. I do not agree. Green J was seeking to extract three principles from his preceding discussion, paragraphs [68] to [75] of which (as I have said) largely comprise extracts from Heath & Hampstead. Paragraph [75] in particular cites [37] from Heath & Hampstead. That latter passage from Heath & Hampstead is expressly approved by Sales LJ in Turner as being one that “remains relevant guidance in relation to the concept of openness of the Green Belt”: see [25] of Turner. It would be extraordinary if Sales LJ’s criticism of [78] of Timmins was to be read as also referring to the passages from Heath & Hampstead that are expressly approved elsewhere in Turner. The criticism of the Court of Appeal in Turner was focused, not on the unobjectionable statements of principle and extracts from Heath & Hamstead at e.g. [75] of Timmins, but on the principles that Green J sought to extract from his analysis of previous authority. As Sales LJ said at [26] of Turner:

“… 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.”

The correctness of Lindblom LJ’s analysis is further underlined by Lord Carnwath in Samuel Smith, where it was said that:

“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.”

Thus, we see that the very passage in Lee Valley criticised by Mr Goodman was cited (without criticism) by Lord Carnwath as being a further example (“To similar effect…”) of the correctly stated proposition in Heath & Hampstead, that the loss of openness within the Green Belt or Metropolitan Open Land is of itself harmful to the underlying policy objective. It was the further stage to which Green J had gone (in [78] of Timmins) that was in error and correctly disapproved in Turner. This is underlined by what Lord Carnwath went on to say at [40] of Samuel Smith:

“40 Lindblom LJ criticised the officer’s comment that openness is “commonly” equated with “absence of built development”. I find that a little surprising, since it was very similar to Lindblom LJ’s own observation in the Lee Valley case (para 23 above). It is also consistent with the contrast drawn by the NPPF between openness and “urban sprawl”, and with the distinction between buildings, on the one hand, which are “inappropriate” subject only to certain closely defined exceptions, and other categories of development which are potentially appropriate. I do not read the officer as saying that visual impact can never be relevant to openness.”

In so doing, it was implicit that Lord Carnwath’s view was that what Lindblom LJ had said at [7] of Lee Valley was a statement of the correct position. I cannot see any other reasonable explanation for Lord Carnwath’s use (in [23] of Samuel Smith) of the phrase, “To similar effect…” in heralding the impugned passage from Lee Valley.

Further confirmation (if such is required) that Lindblom LJ did not err at [7] of Lee Valley is provided by Lindblom LJ’s own judgment in Samuel Smith in the Court of Appeal (“Samuel Smith (CA)”):

19 In R. (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404, when referring specifically to the broad and basic statement of national Green Belt policy in paragraph 79 of the NPPF, with its emphasis on the "essential characteristics of Green Belts" as "their openness and their permanence", I said that "[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" (paragraph 7 of my judgment). This reflects the essential and enduring function of government policy for the Green Belt in keeping land free from development inimical to its continued protection as Green Belt, even where the visual impact of such development on the openness of the Green Belt may not be unacceptable. It recognizes that Green Belt policy regards most forms of development as, in principle, "inappropriate" in the Green Belt simply because it would be there. But it does not mean that the expression "the openness of the Green Belt", when used in various specific contexts within the development control policies in paragraphs 87 to 90, is to be understood as excluding the visual effects of a particular development on the openness of the Green Belt. That is not so – as this court subsequently explained in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466. (Emphasis added).”

Mr Goodman submits that Lindblom LJ was here acknowledging and seeking to correct his prior error in Lee Valley. Once again, I disagree that that is the import of this passage in [19] of Samuel Smith (CA). Lindblom LJ is here recognising that his statement at [7] of Lee Valley – namely that "[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" - could be wrongly construed as meaning that the visual impact of a development is to be excluded in considering the effect on openness; whereas, as he seeks to explain, the statement was intended to reflect “the essential and enduring function of government policy for the Green Belt in keeping land free from development inimical to its continued protection as Green Belt, even where the visual impact of such development on the openness of the Green Belt may not be unacceptable”. In other words, Lindblom LJ’s understanding was not and never had been that visual impact was to be excluded in any analysis of openness.

Even if there had been any merit in Mr Goodman’s argument that Lindblom LJ had incorrectly sought to exclude visual impact from harm to openness, that would not undermine the analysis of the distinction between inappropriate and not inappropriate development. That analysis was not based on a convoluted or legalistic reading of the NPPF but on a reading that is based on context as explained in that case. Nowhere in the lengthy extract from Lee Valley cited above is there any suggestion that the distinction between inappropriate and not inappropriate development is based on an approach to openness that seeks to exclude visual impact.

The Claimant’s failure to undermine the authority of Lee Valley in this context means that much of the remainder of its arguments under Ground 1 fall away. Dealing briefly with those arguments, my views are as follows:

The first point is based on what is said to be a straightforward and not strained reading of NPPF 2024 [153]. This provides that, “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.” Mr Goodman’s submission is that “any planning application” means what it says and is not confined to applications in respect of inappropriate development. The difficulty with that reading is twofold: first, it is inconsistent with the reasoning in Lee Valley, which, as I have concluded, was not wrongly decided and remains good law in this context; second, it is a reading that is inconsistent with the history and development of the relevant policy statements.

As to the first difficulty, it is notable that the Claimant’s argument is similar to that which was run and rejected in Lee Valley: see [14] and [15] of Lee Valley (set out above at [42] and [43]). The reasons for rejecting the argument are comprehensively set out in Lee Valley and apply equally here. The fact that Lee Valley was concerned with the application of an earlier version of NPPF (NPPF 2012) does not negate its applicability to the present case. Many of the key features of Section 9 of NPPF 2012, entitled “Protecting Green Belt Land” appear in Section 13 of NPPF 2024, which bears the same title, as they did in the predecessor PPG 2. These include the distinction between appropriate and inappropriate development (which was a principal concern in Lee Valley), the fact that new development is by definition inappropriate unless it falls within an exception, the fact that some exceptions are qualified and others are not, and the fact that inappropriate development is deemed to give rise to harm and requires to be justified by VSC. The requirement in [153] of NPPF 2024 that when considering any planning application substantial weight is to be given to any harm to the Green Belt, including harm to its openness, must not be read in isolation (as the Claimant’s argument necessitates) but in the context of the totality of the policy, including the provision made for development falling within one of the exceptions and which is thereby deemed not inappropriate. If such appropriate development still had to be subject to an openness analysis with harm being given substantial weight, it would negate the purpose of having exceptions: see Lee Valley at [21].

As to the history of the relevant policy statements, it is relevant to note that PPG 2 was in the following terms:

“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)

As explained in Lee Valley at [22]:

“…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.”

Similarly, if the intention had been for NPPF 2024 to have the effect of dismantling that distinction (which has been in place since PPG 2) there would have been something more than the addition of the words “including its openness” (in [153]) and Footnote 55 to notify so significant a change in national Green Belt policy. The suggestion that there has been such a change, or more fundamentally that there never was a policy that excluded the need to consider harm to openness even in respect of appropriate development, is one that finds little or no support in the authorities or the history.

Mr Goodman in his skeleton argument placed some reliance on the Court of Appeal’s decision in R (Lochailort Investments Ltd) v Mendip DC [2021] JPL 568 where it was stated at [13]:

“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.”

Mr Goodman submits that the Court of Appeal’s reading of the policy in Lochailort is consistent with that contended for by the Claimant. However, Lee Valley was not cited in Lochailort, and the comment in [13] thereof was obiter in any event. As such, it is not surprising that this case did not feature heavily in Mr Goodman’s oral submissions. In my judgment, it provides no assistance to the Claimant.

Mr Goodman’s further point based on the reading of the text is that the Lee Valley-based interpretation of [153] of NPPF 2024 and Footnote 55 renders that footnote entirely otiose. The argument is that if not inappropriate development is to be treated as not giving rise to harm to openness, then Footnote 55, which identifies two further instances of development to which substantial weight to harm is not to be attached, would be rendered otiose. The difficulty with this argument is that it approaches the interpretation of these policy statements as if they were contained within a statute. Taking the correct approach to interpretation, which is to consider the provisions within the overall context of the policy and bearing in mind that it is designed for practical decision-making (see Rectory Homes Ltd v Secretary of State for Levelling Up, Housing and Communities [2021] PTSR 143 at [44]), it is clear in my view that Footnote 55 simply clarifies that a reduction of openness as a result of development on previously developed land or grey belt land is not to be regarded as harm to such openness for the purposes of national Green Belt policy. Far from being otiose, Footnote 55 provides practical clarification in respect of two types of not inappropriate development, one of which (grey belt) is newly included in NPPF 2024. A decision-maker reading the policy in a straightforward and non-legalistic manner will know that these categories of not inappropriate development are also to be treated as not giving rise to harm to openness.

This interpretation is supported by what is said in the accompanying Planning Practice Guidance (which is not determinative) at [14]:

“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).”

Footnote 55 clearly seeks to carve out an exception of some kind from the broad statement that substantial weight be given to any harm to the Green Belt. The Claimant’s contention is that the scope of the carve-out is in respect of the requirement to attach substantial weight to such harm, leaving the decision-maker the discretion to attach at least some weight to such harm. That contention is, in my view, misconceived:

The final, important, consideration in this context is that the Claimant’s interpretation of the policy would undermine the purpose of the new exception for grey belt development as set out in [155] of NPPF 2024. This new exception is designed to permit construction on the Green Belt that was not previously permitted. If a decision-maker then still had to consider harm and give that some weight even where the development is otherwise not inappropriate, then the likelihood is that some grey belt development (which Government Policy seeks to permit) would nevertheless be restricted. I do not think it could have been intended that a permissive policy change should be potentially hamstrung in this way.