High Court hands down ruling on appropriate development and harm to Green Belt

Mr Justice Choudhury said in his judgment the case brought by the council against the Secretary of State for Housing, Communities and Local Government, and site owner Margaret Meloney, had failed and that a Court of Appeal case cited had not been wrongly decided.

A planning inspector had found that planning permission should be given for pitches on Ms Meloney’s site at Newdigate, which the council had rejected.

Mole Valley argued against this on three grounds. The first was that where development is deemed ’appropriate’ in the green belt it can still give rise to harm.

The council argued the Court of Appeal’s decision otherwise in Lee Valley [2016]  - which was decided under NPPF 2012 - did not apply to NPPF 2024, and/or was wrongly decided and the Court of Appeal’s decision in Lochailort should be preferred.

Choundhury J found though that NPPF 2024 operates in the same way as NPPF 2012 such that appropriate development does not give rise to harm to the green belt and that the Lee Valley case was rightly decided.

He said the inspector concluded that the site was 'grey belt’ land and satisfied the requirements of the council’s policy and of NPPF 2024 and so “overall, the inspector concluded on the planning balance that permission should be granted”.

The judge said an analysis by Lindblom J in the Lee Valley case “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 ‘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.”

He added that even if there had been any merit in Mole Valley’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”.

Choudhury J concluded on this ground: “Lee Valley was not wrongly decided. The distinction between inappropriate and not inappropriate development in assessing the effect on openness is one of general application that was properly taken into account in the present case”

On the second ground, the judge said the inspector did not misinterpret the Planning Policy for Traveller Sites when deciding whether sites were deliverable by making an assumption that if a site did not have planning permission it was not deliverable.

The inspector neither not misdirected himself nor made the assumption complained of by Mole Valley, he found.

Choudhury J explained: “I consider this ground to be based on a misreading of [the decision letter].”

He said the inspector’s analysis of deliverability was not confined to part of the letter but had gone on to consider the evidence provided to reach an overall conclusion on deliverability that was not based solely on the council’s “inability to say if planning permission would be granted for these sites”.

The inspector considered other matters besides whether planning permission had been or will be granted, which “indicates that there was no misdirection in law”, the judge said.

He added Mole Valley’s argument appeared to be based on its reading of one passage of the decision letter in isolation, “which, it need hardly be stated, is not the correct approach”.

Choudhury J also dismissed the third ground that the inspector wrongly failed to consider the examining inspector’s report for the Mole Valley Local Plan on the availability of pitches and that was a mandatory material consideration.

He found this report was not a mandatory material consideration on the facts of this case.

“The claimant’s contention that the inspector ought to have inquired about the [examining inspector] report notwithstanding the parties’ failure to draw it to his attention cannot be accepted:”, he said.

Alex Goodman KC and Dr Ashley Bowes from Landmark Chambers appeared for Mole Valley, while from the same chambers Richard Moules KC and Nick Grant appeared for the Secretary of State and Stephen Whale appeared for Ms Meloney.

Mark Smulian