Lee Valley Regional Park Authority, R (on the application of) v Epping Forest District Council & Anor (Rev 1)

Agricultural and forestry buildings fall within an unqualified exception to inappropriate development in the Green Belt under paragraph 89 of the National Planning Policy Framework. They are therefore deemed not to harm Green Belt openness or its purposes merely through their physical presence. Their size, siting and visual effects may nevertheless make them unacceptable under other national or development-plan policies.

A planning authority complies with section 38(6) where it recognises conflict with the development plan but reasonably concludes that material considerations outweigh that conflict. In deciding whether a project requires appropriate assessment, the authority remains the decision-maker but may rely on Natural England’s expert advice. Convincing reasons will generally be required to depart from that advice.

The Regional Park Authority challenged permission for a glasshouse of about 92,000 square metres on Green Belt land within the Lee Valley Regional Park and near a Special Protection Area and Ramsar site. Dove J dismissed its judicial review claim in [2015] EWHC 1471 (Admin).

The appeal raised three issues: whether the council had misinterpreted national and local Green Belt policy; whether it had complied with section 38(6) of the Planning and Compulsory Purchase Act 2004 and the policy presumption in favour of sustainable development; and whether article 6 of the Habitats Directive and regulation 61 of the Conservation of Habitats and Species Regulations 2010 required an appropriate assessment of effects on the protected site.

1. The appeal was dismissed. Paragraphs 87–90 of the National Planning Policy Framework had to be read together. Agricultural and forestry buildings are within an unqualified exception to inappropriate development under paragraph 89. They are appropriate development regardless of their size, location or physical effect on openness. Policy therefore deems their physical presence not to harm Green Belt openness or the purposes of including land in the Green Belt. Requiring substantial weight to be given to that same effect under paragraph 88 would negate the exception.
2. Appropriate status is only the first step. Agricultural buildings remain subject to policies protecting visual amenity, rural character, landscape and the countryside. The council’s officer lawfully considered those matters and correctly distinguished Green Belt openness from visual and landscape effects. Her report, read fairly and as a whole, neither misled the committee nor omitted an essential consideration.
3. The officer complied with section 38(6) of the Planning and Compulsory Purchase Act 2004. She recognised conflict with the development plan and the resulting landscape and amenity harm, but concluded that economic and sustainability benefits and the lack of a more suitable site outweighed them. Her phrase “presumption in favour of sustainable economic development” was at worst infelicitous and did not reveal application of an invented presumption.
4. The council lawfully concluded that an appropriate assessment was unnecessary under article 6 of the Habitats Directive and regulation 61 of the Conservation of Habitats and Species Regulations 2010. The relevant question was whether the development, with mitigation designed to avoid or reduce its effects, was likely to have a significant effect on the protected site. Natural England’s clear expert advice supported a negative answer, and the available bird-count evidence did not make its factual basis unsound.
5. The council remained responsible for the regulation 61 decision and did not delegate it to Natural England. A competent authority may adopt the statutory nature conservation body’s expert advice. It will generally require convincing reasons to depart from that advice. The council had no such reason here, and its decision satisfied the preventative and precautionary approach.

1. Court of Appeal (Civil Division): The appeal in [2016] EWCA Civ 404 was dismissed. The court upheld Dove J’s dismissal of all three grounds.
2. Administrative Court, Planning Court: Dove J dismissed the claim for judicial review in [2015] EWHC 1471 (Admin).