CA-2024-002732 - [2025] EWCA Civ 958

On 24 October 2023, the inspector provided a thorough, comprehensive and detailed report dealing with both appeals. It should be read in its entirety. For the purposes of this appeal, it is only necessary to consider those parts which deal with the green belt. As the inspector correctly noted at paragraph 525, one of the main issues common to the appeals was the green belt. As the inspector correctly understood, “Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances” (see paragraph 152 of the NPPF).

The inspector recorded the cases of the parties, and the evidence of Cala and Headlands on the effect of the proposed developments on the green belt. He set out the benefits of the proposed developments identified by Cala and Headlands which, principally, included a contribution to meeting the housing needs in St Albans in circumstances where the Council had a shortage of housing land and would only be able to provide about 40% of the housing needed over the next five years and where the supply of affordable homes was said to be even more precarious. He set out their cases as to why the contribution to housing needs amounted to very special circumstances justifying inappropriate development in the green belt. He recorded the submissions, and reviewed evidence submitted on behalf of the appellant, and others, on the green belt. He also recorded the case for the Council which opposed the appeals and opposed the grant of planning permission for these two proposed development. In that section of the report, the inspector recorded that “a new Green Belt review is due to be published shortly” (paragraph 300 of the inspector’s report).

The inspector’s conclusions begin at paragraph 525 of his report. His conclusions on the green belt generally are set out at paragraphs 527 to 533 in the following terms (paragraph numbers are references to paragraphs in the report):

“Green Belt

527.

Both appeal sites are located wholly within the Metropolitan Green Belt. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping lands permanently open; the essential characteristics of Green Belts are their openness and their permanence.

528.

There is no dispute between the parties that the appeal proposals constitute inappropriate development in the Green Belt and that such development would be, by definition, harmful to it. Such proposals should not be approved except in very special circumstances. These will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting form the proposal, is clearly outweighed by other considerations.

529.

Consistent with the National Planning Policy Framework (the Framework), Policy 1 of the District Local Plan Review (1994) (LP) restricts development in the Gren Belt other than in very special circumstances.

530.

In preparing for a new Local Plan, the Council commissioned a Green Belt Review (GB Review) comprising the Green Belt Review Purposes Assessment (November 2013) (GBR Purposes Assessment) and the Green Belt Review Sites & Boundaries Study (February 2014). The first is said to be an independent and comprehensive Green Belt review that seeks to advise on the role different areas play in fulfilling the fundamental aim of the Green Belt and its five purposes as defined within the Framework, ranking and scoring their performance. The second, reviews the eight strategic sub-areas found to contribute the least towards the five Green Belt purposes against which all Green Belt land in St Albans was assessed in the GBR Purposes Assessment. [46-57, 248, 307-314]

531.

The GB Review looks at the district on a large and strategic scale, rather than on a site-by-site basis and is now some years old, such that some circumstances may have changed. It also makes assessments in the context of a potential release of land from the Green Belt through the plan making process, which is not the purpose of these appeals. For these reasons, its conclusions cannot be directly applied to the appeal proposals. However, the GB Review is clearly a material consideration relevant in considering Green Belt matters in the district, notwithstanding that the Local Plan they were intended to support has been withdrawn by the Council and attracts no weight in and of itself. I have had regard to the GB Review in reaching my own conclusions. This is notwithstanding the reservations expressed about the GB Review by the Inspectors examining the formerly emerging LP, which have no bearing on the issues in these appeals or on the purposes for which I have had regard to the GB Review. [55-57, 310-314]

532.

Both appeals fall within strategic sub-area ‘S8: Land at Chiswell Green’. It is a 'Tier 1' site, which includes sites that do not significantly contribute towards any of the five Green Belt purposes and are classified as exhibiting ‘higher’ suitability for at least two of the three categories relating to constraints, integration and landscape sensitivity. Out of the strategic sub-areas considered, it is ranked in first position, the most suitable area in the district. [59, 76]

533.

The Council accepts that there will need to be a significant amount of development in the Green Belt if its housing requirement is to be met. That being the case, the relative suitability of sub-area S8 is an important consideration. [248, 307, 532]”.

The inspector then considered Appeal A and said this:

“Appeal A

534.

The site is largely undeveloped and open at present, with few structures, notably the existing stable block to the northwest and an unoccupied dwelling to the northeast. As such, there would undoubtedly be a significant and permanent impact on openness in a spatial sense. The introduction of 391 dwellings, a school and associated works would introduce a great deal of built volume to the Green Belt.

535.

There would also be significant harm to openness in a visual sense in that the development would be seen from surrounding properties, highways and public rights of way, albeit that areas of open space would also be delivered. Activity within the site would also increase greatly with the comings and goings of residents, visitors, school pupils and staff. [62, 325, 351, 380]

536.

That said, the development would not become a prominent part of the wider Green Belt and would only be visually harmful in relatively close proximity to the site. It is visually contained by existing built form on the eastern side, and this partially wraps around the site to the north and south. To the east, is Miriam Lane, which follows the western boundary of the site with thick landscaping along much of its length. This leads to the former Butterfly World site where significant development exists, such as building slabs, earth bunds, fencing and other built form associated with the former use. Even bearing in mind that some structures and uses within the site are apparently unauthorised and may be removed, development is visible and provides a good degree of screening, along with a definitive boundary to the west of the site. [50-54, 59, 65, 73-75, 309, 316, 332, 334, 343, 354-360]

537.

Nevertheless, it is clear that the development would result in significant harm to Green Belt openness and I attach this harm substantial weight.

538.

So far as the Green Belt purposes are concerned, the first seeks to check the unrestricted sprawl of large built-up area. The proposed development would extend the urban edge of Chiswell Green, expanding the settlement into countryside. However, as I have described above, the site is relatively well contained by Miriam Lane, its landscaping (including some earth bunds) and the remaining development associated with Butterfly World, which is now closed. These defensible boundaries wud define the extent of the site and separate it from the wider countryside, minimising any perception of uncontrolled sprawl. There would be moderate harm to this Green Belt purpose.

539.

The second purpose is to prevent neighbouring towns merging into one another. The development would extend the settlement edge of Chiswell Green, which is located in close proximity to St Albans. The urban edge would be brought marginally closer to Hemel Hempstead but the size of the site, in the context of the vast gap between St Albans and Hemel Hempstead, is such that there would be little contribution to any perceived merging of the towns. The harm to this purpose would be very limited.

540.

The third purpose is to assist in safeguarding the countryside from encroachment. The development would obviously encroach on the countryside, albeit contained by Butterfly World and Miriam Lane. Having regard to the considerations I have set out above, the development would result in moderate harm to this purpose.

541.

No party argues that there would be any harm to the remaining Green Belt purposes, as contained in the Framework. [68, 72-75, 331-342, 353-360]

542.

It is notable that the Council’s GB Review found the part of sub-area S8, within which the appeal site falls, to be the least sensitive part of the sub-area. Nevertheless, the Appeal A scheme would result in definitional harm of the Green Belt, s well as harm to its openness and purposes. I attach substantial weight to this harm. [76-78, 267-273, 309, 361-363, 532].”

The inspector then considered Appeal B and said this:

“Appeal B

543.

The appeal site is again largely open and undeveloped, albeit with a modest agricultural style building close to Chiswell Green Lane. Appeal B proposes less development than Appeal A, but the 330 dwellings sought would nevertheless have a considerable and permanent impact on openness in both a spatial and visual sense. This would result from the volume of built form to be introduced and the visibility of buildings from surrounding properties, highways and public rights of way. Again, activity within the site would increase greatly.

544.

Unlike Appeal A, more open and longer-range views towards the site are available and the development would be seen more readily in the context of the wider Green Belt from the west, including from public rights of way. Conversely, views from Chiswell Green in the immediate locality of the site would be curtailed or filtered to a large extent by the boundary hedgerows and other landscaping, which includes thick evergreen hedges along the north and east boundaries that would largely be retained. It is likely that the upper parts of the buildings would still be visible however, even after further landscaping the site. The fact that the site is separated from the edge of Chiswell Green by a thick hedgerow and an intervening paddock gives a strong perception that it is part of the countryside beyond the settlement edge. The established urban edge has little impact on the visual openness of the site, though houses on Cherry Hill and The croft are a notable backdrop from the west.

545.

In light of the above, the development would result in substantial arm to Green Belt openness and I attach this harm substantial weight.

546.

Having regard to the purposes of Green Belt, the development would significantly harm the first purpose. It would introduce development beyond the established settlement edge and would remain separated from built form on the edge of Chiswell Green by a paddock. It would, to some extent, have the appearance of unrestricted sprawl, clearly protruding into the wider rolling countryside. This appearance might be reduced if the intervening paddock were subsequently developed as KCG anticipate, but that cannot be guaranteed. Public right of way 21 would provide the only form of defensible boundary to the west of the site, with its established hedgerow and tree planting, through additional landscaping could be introduced to reinforce this.

547.

The effect of the second Green Belt purpose would be similar to that for Appeal A. The development would protrude in the general direction of Hemel Hempstead but there is no evidence of a proliferation of development in the separating gap that leads to any meaningful perception of coalescence, even on an incremental basis. To the extent that the gap would be marginally reduced, very limited harm would result to the second purpose.

548.

There is no disagreement between the parties that the third Green Belt purpose would also be harmed by the development, and having regard to my conclusions above, it is obvious that the development would encroach on the countryside. The quantum of development, its separation from the established settlement and visibility from the wider Green Belt are such that significant harm would result to the third purpose.

549.

As with Appeal A, no party argues that there would be any harm to the remaining Green Belt purposes, as contained in the Framework.

550.

The GB Review draws a distinction between the east and west parts of sub-area S8, nothing that the western area, with which Appeal B is located, is more sensitive. This accords with my own findings that the Green Belt impacts would be much greater from Appeal B. The development would result in definitional harm to the Green Belt, as well as harm to its openness and purposes. I attach substantial weight to this harm. [76-78, 267-273, 267-273, 309, 361-363, 532].”

The inspector then considered other matters before turning to the issue of whether there were very special circumstances which justified inappropriate development in the green belt. In the case of both appeals he gave “substantial weight to the harm that would arise to the Green Belt” (paragraphs 606 and 609). In both appeals, he considered that there “would be very substantial benefits in terms of housing provision” (and other benefits too, see paragraphs 607 and 610). In both cases, his conclusion, as appears from paragraphs 608 and 611, was that:

“Overall, the harm by reason of inappropriateness, and any other harm, is very clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.”

The inspector therefore recommended that both appeals be allowed and planning permission be granted subject to conditions.