Smith v Secretary of State for Communities and Local Government

Under para. 90 of the National Planning Policy Framework, the reuse of a permanent and substantial building in the Green Belt is not inappropriate development only if it preserves openness and does not conflict with Green Belt purposes.

Openness is an open-textured concept with both spatial and visual dimensions. Its assessment is a matter of planning judgment. Features associated with a change of use, including fencing, parking, storage and domestic paraphernalia, may be relevant even where they do not constitute new buildings. An inspector need not disaggregate those effects from the development as a whole. A flawed initial description of the policy starting point will not invalidate a decision if it made no difference to the substantive assessment or outcome.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of his appeal against refusal of planning permission. The proposal involved converting an existing substantial shed in the Metropolitan Green Belt into two dwellings, with associated gardens, fencing, bin storage and parking.

The inspector concluded that those associated features would cause limited harm to openness and would conflict with the purposes of the Green Belt. The central issues were whether the inspector had misunderstood para. 90 of the National Planning Policy Framework, whether visual effects from non-building features could affect openness, and whether he had to compare the proposal with the existing commercial use.

1. Application refused. The inspector’s decision was not unlawful and the claim under section 288 of the Town and Country Planning Act 1990 was dismissed.
2. Paragraph 90 of the National Planning Policy Framework requires an evaluative assessment of whether a proposal falling within one of its categories preserves openness and avoids conflict with Green Belt purposes. The policy does not require the court to treat every feature inevitably associated with an otherwise appropriate use as automatically acceptable.
3. Following Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466, openness is open-textured and has spatial and visual dimensions. It is not confined to the volume or physical footprint of buildings. The inspector was entitled to consider the visual and domesticating effects of fences, bin storage, parking and likely domestic paraphernalia.
4. The inspector was not required to disaggregate those features from the development or to ignore them because some might not require separate planning permission. His conclusion that they caused limited harm to openness was a planning judgment and disclosed no error of law.
5. The inspector’s apparent initial starting point that the proposal was inappropriate did not invalidate the decision. His later assessment correctly took the proposal outside the para. 90 exception, and a different starting point would not have affected the result. The reference to urban sprawl was also a relevant consideration and was not irrational.
6. The inspector had considered the existing hard standing and was entitled to conclude that its removal produced no Green Belt benefit because it did not itself affect openness. The claimant could not raise the alleged failure to consider vehicle removal when that point had not been put to the inspector.