Newlyn Dean & Sons LTD v Secretary of State for Communities And Local Government

Under PPG2, outdoor sport, outdoor recreation and cemeteries are not automatically excluded from inappropriate development in the Green Belt. Essential facilities for those uses must still be genuinely required for a use that preserves openness and does not conflict with Green Belt purposes. The decision-maker must make a global, fact-sensitive assessment of the proposal’s effect on openness, including the cumulative effect of structures, equipment and associated parking. Material changes of use are inappropriate unless they maintain openness and do not conflict with those purposes. An appellate court will not interfere with planning merits absent misdirection or perversity. Issues concerning a possible planning condition and protected heathland were left undecided because the appeal failed on the Green Belt and planning-merits grounds.

Newlyn Dean & Sons Limited appealed under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s dismissal of challenges to enforcement notices concerning paintballing, associated structures and equipment, and livery use at Bedborough Farm.

The Inspector upheld four notices. The Administrative Court rejected all four grounds of appeal in [2012] EWHC 2909 (Admin). Before the Court of Appeal, the principal issue was whether the uses and associated development constituted inappropriate development in the Green Belt under PPG2. The appeal also raised visual amenity, planning-condition enforceability and possible effects on a protected heathland site. The latter issues became academic once the Green Belt grounds failed.

Appeal dismissed. Lord Justice Patten gave the judgment, with Lord Justice Lewison and Lady Justice Sharp agreeing.

1. Construction of PPG2. The requirement in paragraphs 3.4 and 3.5 that development preserve Green Belt openness and avoid conflict with the purposes of Green Belt designation applies to all the uses in the second indent of paragraph 3.4. Outdoor sport, outdoor recreation and cemeteries are not deemed to be outside the category of inappropriate development. Paragraph 3.5, read with paragraphs 3.4 and 3.12, confirms that essential facilities must be assessed by reference to the effect of the whole proposal on openness. The objectives of providing outdoor recreation do not override the fundamental purposes of Green Belt policy.
2. Factual assessment. Whether structures or associated uses materially affect openness is a question of fact and judgment for the Inspector. A global assessment may include the size, solidity, number and distribution of structures, their temporary or permanent character, and associated parking, vehicles and equipment. The Inspector was entitled to conclude that the paintballing obstacles and associated parking materially reduced openness, and that the livery use had the same effect through vehicle parking and likely horse shelters. Temporary structures could be treated as part of the relevant change of use.
3. Existing buildings and planning merits. The corresponding test in paragraph 3.8 applied to the change of use of the agricultural barn. The Inspector correctly directed herself on the Green Belt issue. Her conclusions on rural character and visual amenity under policy CSIDE1 were neither irrational nor unfair. The court could not interfere with her planning assessment absent a misdirection or perversity.
4. Protected site and conditions. The court set out the statutory framework under regulations 61(1), 61(5) and 61(6) of the Habitats and Species Regulations 2010. However, the challenges concerning the enforceability of restrictions on riding and continued availability of the manège were hypothetical and became academic. The court expressed no concluded view on whether such a condition would be effective or whether the Inspector’s approach was procedurally unfair.

The appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal: [2014] EWCA Civ 193.
• Administrative Court rejected all four grounds challenging the Inspector’s decision: [2012] EWHC 2909 (Admin).