[2025] EWHC 2127 (Admin)

The Claimant submits that the critical error in the Inspector’s analysis is encapsulated in the following passage in the DL:

“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)

The Claimant contends this amounts to misinterpretation of [153] and Footnote 55 of NPPF 2024.

NPPF 2024 [153] provides:

“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”.

That passage is subject to Footnote 55, which provides:

“Other than in the case of development on previously developed land or grey belt land, where development is not inappropriate”.

The Claimant’s submission is that the footnote merely removes the requirement to accord ‘substantial weight’ to any harm to openness and does not extend to excluding any consideration of harm to openness altogether. By stating that the “openness of the Green Belt cannot be compromised by development that is not inappropriate”, the Inspector was erroneously excluding from consideration the possibility of harm caused by the development. The Claimant submits that to interpret NPPF 2024 as the Inspector did, and as the Defendants submit it should be interpreted, is to render footnote 55 entirely otiose in that, if it is correct that development which is not inappropriate is to be treated as not harming openness there would have been no need to insert a footnote declaring two types of development that were to be similarly treated.

Insofar as the Defendants seek to rely on the judgment of Lindblom LJ in Lee Valley, it is submitted that such reliance is misplaced because that judgment was concerned with the NPPF as it stood in 2016 and prior to the amendments which are key to the present claim; and that to the extent that Lee Valley remains good law as to the interpretation of NPPF 2024, it means no more than that decision makers should not take into account the definitional or actual harm to the Green Belt for proposals for agriculture and forestry.

The focus of Mr Goodman KC’s argument in oral submissions on this ground was somewhat different. It was submitted that any reliance placed by the Defendants on the judgment of Lindblom LJ in Lee Valley was misplaced because that judgment was itself predicated on a flawed analysis of the meaning of “openness”. At [7] of Lee Valley, Lindblom said as follows:

“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)

Mr Goodman points out that the decision of Green J (as he then was) in Timmins on the relevance of visual impact on openness was the subject of express disapproval by the Court of Appeal in Turner v SSCLG [2017] P & CR1 (per Sales LJ (as he then was) at [18]). The Court of Appeal emphasised in that case that “…[t]he question of visual impact is implicitly part of the concept of “openness of the Green Belt” as a matter of the natural meaning of the language used in para.89 of the NPPF”. (That reference to [89] of the 2012 NPPF corresponds to [154] in the current version). Sales LJ went on to say:

“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).

Lord Carnwath in R (Samuel Smith) Old Brewery (Tadcaster) v North Yorkshire County Council [2020] PTSR 221 agreed with that disapproval (at [25]).

Mr Goodman submits that the effect of these later judgments is that Lindblom LJ’s reliance on Timmins in Lee Valley was erroneous and that everything said by him in relation to openness in that case is infected by the notion that visual impact could be hived off from openness considerations, which is clearly wrong. The concept of openness includes visual impact and, as such, Lee Valley can be said to have been wrongly decided.

It is submitted that, unburdened by the Court of Appeal’s analysis of openness in the Lee Valley case, the meaning of NPPF 2024 [142], [153] and [155] is clear and there is no warrant for treating not inappropriate (or appropriate) development as not giving rise to any harm to openness. In particular, as stated in NPPF 2024 [153]:

“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.”

That means, submits Mr Goodman, any application and not only applications in respect of inappropriate development. This is critical in the present case, submits Mr Goodman, because the Inspector expressly found that there was harm to the rural character and appearance of the site, and he clearly erred in not giving that some weight. As to this last point, Mr Goodman contends that, far from suggesting that harm caused by non inappropriate development be given no weight, Footnote 55 of the NPPF merely requires that such harm not be given “substantial weight”.

Mr Moules KC for the Secretary of State submitted that it is not reasonably arguable that Lee Valley has somehow been superseded (or implicitly overruled) by Turner and Samuel Smith. Lee Valley is good law and makes it clear that development that is not inappropriate within the meaning of NPPF does not give rise to harm to openness. The Inspector was correct in his approach. Furthermore, Footnote 55 of NPPF 2024 merely serves to put beyond doubt that the Lee Valley approach applies to the new and newly formulated exceptions contained in NPPF 2024, including, in particular, that which relates to Grey Belt development. Mr Whale adopted those submissions.