Newlyn Dean & Sons Ltd v Secretary of State for Communities and Local Government & Anor

Under Planning Policy Guidance Note 2, a material change of use in the Green Belt is inappropriate development unless it maintains openness and does not conflict with the purposes of including land in the Green Belt. Outdoor sport, outdoor recreation and cemeteries are not deemed to preserve openness. The assessment is fact-sensitive and may take account of scale, duration, frequency, associated structures, equipment and vehicle parking.

New buildings must also satisfy the requirements for essential facilities and genuine necessity where applicable. A planning inspector is not generally required to devise conditions which an applicant has not proposed. Where European sites may be affected, the decision-maker must be certain that the development will not adversely affect their integrity.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of its appeal concerning four enforcement notices relating to paintballing structures and use, and DIY livery, at Bedborough Farm in Dorset.

The principal issues were whether the inspector had misconstrued PPG2 by treating outdoor recreation and livery as subject to an openness assessment, whether her conclusions on visual amenity and Green Belt effects were irrational or procedurally unfair, and whether she had properly assessed the effect of livery on nearby European sites.

1. Appeal dismissed. The inspector had not erred in law in applying PPG2.
2. PPG2 must be construed objectively, purposively and consistently with its fundamental aim of keeping Green Belt land permanently open. The purposes of including land in the Green Belt take precedence over the land-use objectives in paragraph 1.6.
3. Paragraph 3.12 applies generally to material changes of use. Outdoor sport, outdoor recreation and cemeteries are not exempt from the requirement that the use maintain openness and avoid conflict with the purposes of including land in the Green Belt. Openness may be affected by the scale, duration, frequency, structures, equipment and associated parking.
4. The court declined to adopt the wider reading suggested by Samuel Smith Ltd v Secretary of State for Communities and Local Government, [2009] EWHC 3238 (Admin), noting that the relevant observation was obiter and that the reasoning was not compelling. Gass v Secretary of State for Communities and Local Government, [2008] EWHC 350 (Admin), did not support the claimant’s interpretation.
5. The inspector was entitled, as a matter of planning judgment, to find that paintballing structures and temporary obstacles harmed openness and visual amenity, and that vehicle movements and temporary horse shelters materially affected openness. Her conclusions were not irrational. Under R (Ayres) v Secretary of State for the Environment, Transport and the Regions, [2002] EWHC 295, she was not required to search for an unoffered condition.
6. The inspector reasonably concluded that the continued availability of the manège could not be ensured and that she could not be certain that livery horses would not be ridden onto the adjacent heaths. Applying the approach in Waddenzee, she was entitled to conclude that the livery would adversely affect the integrity of the European sites and would contravene Regulation 61 of the Habitats Regulations.
7. The claimant was ordered to pay the Secretary of State’s costs, subject to further argument concerning the reserved permission costs.

The judgment does not state a prior court decision. It concerns a statutory appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dated 16 April 2010. Permission to appeal was granted on 19 January 2011.