Euro Garages Ltd v The Secretary of State for Communities And Local Government & Anor

Under paragraph 89, bullet point [6] of the National Planning Policy Framework, limited infilling in a previously developed Green Belt site must satisfy two distinct requirements. It must have no greater impact on Green Belt openness than the existing development and must not conflict more with the purposes of including land in the Green Belt.

Greater impact means more than the fact of physical change. The decision-maker must assess the harm, if any, caused by the change. Openness is an open-textured concept involving spatial and, where relevant, visual or perceived effects. There is no fixed checklist, but visual impact generally requires consideration. A decision which assumes that any increase in floor area or volume necessarily creates greater impact misinterprets or fails to apply the policy.

Euro Garages sought retrospective planning permission for a storage area and shop extension at a petrol filling station in the Green Belt. The applications were refused, and an Inspector dismissed the appeals under section 78 of the Town and Country Planning Act 1990.

Euro Garages challenged the Inspector’s decision under section 288, alleging that the Inspector had misunderstood and inadequately applied paragraph 89, bullet point [6] of the National Planning Policy Framework. The central issue was whether the Inspector lawfully assessed the proposals’ impact on the openness of the Green Belt.

1. The claim succeeded. The Inspector’s decision was quashed.
2. Paragraph 89, bullet point [6] contains two distinct requirements. Limited infilling must not have a greater impact on the openness of the Green Belt than the existing development, and must not conflict more with the purposes of including land within the Green Belt. The Inspector correctly treated these as separate requirements.
3. “Greater impact” requires more than a change to the existing environment. Some change is inherent in every infilling proposal. The decision-maker must assess whether the change causes greater impact or harm to Green Belt openness. This is a planning judgment.
4. Openness concerns the Green Belt, rather than merely the individual site. It is open-textured and has both spatial and visual or perceived dimensions. There is no mandatory checklist, but visual impact generally requires consideration where openness is in issue. The principles in Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2018] EWCA (Civ) 489 supported that approach, while Turner v Secretary of State of Communities and Local Government [2016] EWCA Civ 466 did not establish a fixed list of factors.
5. The Inspector considered the scale, mass and some visual effects of the proposals, but gave no adequate reasoning for concluding that relatively small increases in floor area and volume had a greater impact on openness. The reasoning either treated any change as sufficient or failed to assess the harm caused by the change. The decision therefore misinterpreted or failed to apply the policy.
6. The alternative argument that the development was local transport infrastructure under paragraph 90 was not determined.

The Inspector dismissed the section 78 planning appeals on 29 November 2017. The High Court granted permission for the section 288 challenge and quashed the Inspector’s decision.