Lee Valley Regional Park Authority v Epping Forest District Council

Under the National Planning Policy Framework, a building for agriculture falls within the paragraph 89 exception to inappropriate Green Belt development without a separate requirement that it preserve openness. Once development is properly classified as appropriate, its effect on openness is not separately treated as Green Belt harm under paragraph 88, although other planning policies and material considerations remain relevant.

A Schedule 2 development must be screened and the screening opinion must give and publish reasons. Failure to do so is a domestic-law breach, but does not automatically require quashing where the breach is technical and causes no material prejudice. In habitats cases, preventive measures which avoid or reduce effects on the protected interest are mitigation and may be considered at the screening stage.

The claimant, a regional park authority, challenged the defendant local planning authority’s grant of permission for a large horticultural glasshouse development within the Green Belt and Lee Valley Regional Park. The development affected a water body used by birds for which a nearby Special Protection Area had been designated.

The challenge alleged errors in interpreting Green Belt policy, failure to comply with environmental impact assessment screening requirements, and unlawful treatment of the habitats issues, including reliance on Natural England’s advice and the adequacy of the available bird data. The permission had followed an earlier appeal decision refusing a substantially similar proposal.

1. Ground 1. The challenge to the Green Belt analysis failed. Paragraph 89 of the Framework distinguishes agricultural buildings from other new buildings without qualifying that exception by preservation of openness. The concept of appropriateness is appropriateness to the Green Belt. A building falling within the agricultural exception is therefore deemed not harmful to the Green Belt, including its openness, and paragraph 88 does not require substantial weight to be given to an alleged harm to openness arising merely from that appropriate development. Other development-plan policies, including policies concerning glasshouse areas, agricultural buildings, conspicuous development and the Regional Park, remained relevant and were lawfully weighed as part of the overall planning judgment.
2. The officers’ report, read fairly as a whole, did not unlawfully substitute a presumption in favour of sustainable economic development for the Framework’s policy. It recognised the Framework’s support for sustainable economic development and carried out the balancing exercise required by section 38(6) of the Planning and Compulsory Purchase Act 2004.
3. Ground 2. The Schedule 2 development had in fact been screened. Regulations 7, 5(4) and 5(5) were complied with. The authority breached regulations 4(7) and 23 of the 2011 Regulations by failing to provide and publish the reasons for its screening opinion. That requirement was domestic-law additional protection; the Directive, as explained in Mellor v Secretary of State for Communities and Local Government C75/08 [2010] PTSR 880, required reasons only if requested. The breach was technical, caused no material prejudice and did not justify quashing the permission.
4. Ground 3. Natural England had applied the correct habitats-law tests. The authority was entitled to rely on its consultation response, provided it addressed the legal questions itself. The available data did not make the ecological conclusions unsound. The proposed timing restrictions and replacement or enhanced supporting habitat were preventive measures designed to avoid or reduce effects on the protected bird interest, and were therefore mitigation rather than compensation. The adverse appeal decision did not alter that conclusion: Natural England had access to it and was not persuaded by it, although the judge cautioned that fuller reasons might be required in another case.
5. The claim on all three grounds was dismissed. Permission to appeal was refused.

First-instance judicial review. The court dismissed the challenge to the planning permission and refused permission to appeal.