Samuel Smith Old Brewery (Tadcaster) Oxton Farm v North Yorkshire County Council & Anor

For mineral extraction within paragraph 90 of the National Planning Policy Framework, the decision-maker must ask whether the development preserves the openness of the Green Belt and avoids conflict with its purposes. Openness has both spatial and visual dimensions. Where visual effects are likely, they must be considered as part of that assessment; excluding them as a matter of principle is an error of law. Preservation does not require the absence of every physical change: the question is whether effects are harmful, a matter of planning judgment. An existing quarry may be relevant, but cannot replace a proper assessment of cumulative visual and spatial effects. A report confined to spatial impact materially misleads the committee. The planning permission was quashed.

The appellants sought judicial review of planning permission granted by North Yorkshire County Council for a six-hectare extension to an operational limestone quarry in the Green Belt. An earlier permission had been quashed for environmental impact assessment failings. The officer advised the committee that the proposal preserved Green Belt openness, treating openness as commonly meaning the absence of built development. Hickinbottom J dismissed the claim by order dated 7 March 2017, reported at [2017] EWHC 442 (Admin). The appeal concerned whether the authority had failed to consider visual impact, had misdirected itself on built development, had adopted inconsistent conclusions, or had treated the existing quarry as removing conflict with Green Belt openness.

The appeal was allowed and the county council’s grant of planning permission was quashed.

1. Meaning and application of paragraph 90. The proviso in paragraph 90 contains two separate requirements: preservation of Green Belt openness and avoidance of conflict with the purposes of including land in the Green Belt. Openness is context-specific and has spatial and visual dimensions. Where development in a paragraph 90 category is likely to have visual effects, the decision-maker must consider how those effects bear on preservation of openness. Excluding visual impact as a matter of principle is artificial and amounts to a misunderstanding and misapplication of policy.
2. Error in the officer’s report. The report recognised substantial landscape and visual effects, including permanent landscape change, exposed quarry faces and possible loss of long-distance views. Its specific assessment of Green Belt openness, however, addressed spatial impact only and did not explain whether visual effects were relevant. The earlier landscape assessment was not incorporated into that analysis, nor were the possible effects of screening measures on openness considered.
3. Other grounds. The statement that openness was commonly taken to mean the absence of built development was inaccurate and potentially misleading, but it was not independently sufficient to quash the permission. The apparent inconsistency between preserving openness and causing no material harm was also rejected: preservation does not mean that there can be no physical change, only that the effects must not be harmful. The existing quarry and the proposal’s status as an extension were relevant considerations, but did not justify confining the assessment to spatial scale.
4. Discretion. The error concerned a pivotal policy question. The court could not be confident that the committee would have reached the same decision had visual impact been properly considered. It therefore declined to uphold the permission under section 31 (2A) of the Senior Courts Act 1981. Planning judgment remained for the authority, but that principle did not prevent intervention where national policy had been misunderstood.

• Court of Appeal (Civil Division). Appeal allowed and the county council’s grant of planning permission quashed.
• Administrative Court, Planning Court. Hickinbottom J dismissed the judicial review claim by order dated 7 March 2017: [2017] EWHC 442 (Admin).
• North Yorkshire County Council. Planning permission for the quarry extension was granted on 22 September 2016 after a committee decision and a section 106 agreement.