Lee Valley Regional Park Authority, R (on the application of) v Britannia Nurseries

Green Belt policy requires a planning decision-maker to identify which parts of a site are previously developed land and to assess openness, inappropriate development and very special circumstances accordingly. Previously developed land within part of an application site does not make the whole site previously developed land. Openness concerns the extent and character of development, not merely visual appearance. Harm by reason of inappropriateness must be identified and given substantial weight. A housing land shortfall can form part of very special circumstances, but is rarely sufficient alone. The decision was quashed because the officer’s report and committee analysis failed to make these distinctions and assessments.

The claimant challenged Broxbourne Borough Council’s grant of outline planning permission for 90 dwellings, public open space and parking on 4.4 hectares within the Green Belt and Lee Valley Regional Park. The site comprised a southern area containing former nursery buildings and a northern area of open grass and scrub land. The claimant argued that the officer’s report unlawfully treated the site as previously developed land, misunderstood openness, failed to address Green Belt harm and very special circumstances, and misapplied the statutory status of the Regional Park Plan.

The central questions were whether the report properly applied Green Belt policy to the two parts of the site, whether the development accorded with the development plan, and whether the Regional Park Plan formed part of that plan.

1. Decision quashed. The planning permission was unlawful because the committee was not properly directed on the Green Belt consequences of developing the two materially different parts of the site.
2. The southern part was previously developed land. The former agricultural buildings had lawfully acquired a mixed agricultural and non-agricultural use and were therefore no longer agricultural buildings for the NPPF exclusion. The continuing presence of previously developed land in the southern part did not make the open northern part previously developed land.
3. The report treated the site as a whole and failed to identify the breach of Green Belt policy on the northern part, the harm caused by inappropriate development, the degree of very special circumstances required, and which circumstances could properly justify development there.
4. Openness required a rational comparison of the existing and proposed development, including footprint, height, bulk, dispersal and associated gardens, roads and hard surfaces. Visual improvement or removal of dereliction could not simply be treated as a benefit to the openness of the whole site when most of the open northern part would be developed.
5. A housing land shortfall could constitute a very special circumstance, although it would rarely suffice alone. Features of design could qualify only if they went beyond ordinary design requirements.
6. The Regional Park Plan was not part of the adopted development plan. Section 14(2) of the Lee Valley Regional Park Act 1966 did not make incorporation automatic. The Plan was instead a separate source of planning policy.
7. The court declined to withhold relief because of alleged pre-action protocol failure or expenditure incurred by the interested party. The decision was quashed.