R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council

Openness in Green Belt policy is a broad concept directed to preventing urban sprawl by keeping land open. It is not confined to visual qualities or freedom from every form of development.

Visual impact may be relevant when applying the openness requirement, but national policy does not require it to be considered in every case. Its relevance and weight are ordinarily matters of planning judgement.

A planning decision is not unlawful merely because the authority omitted a potentially relevant consideration. The consideration must be expressly or impliedly required by statute or policy, or so obviously material that it had to be considered. Mineral extraction may remain appropriate Green Belt development where it preserves openness and does not conflict with Green Belt purposes.

In R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council, the council granted permission for a six-hectare extension to an operational limestone quarry in the Green Belt. The planning officer concluded that the temporary development, its location beside the existing quarry and its eventual restoration meant that it would preserve openness and would not conflict with Green Belt purposes.

Hickinbottom J dismissed an application for judicial review in the High Court: [2017] EWHC 442 (Admin). The Court of Appeal reversed that decision and quashed the permission, holding that the officer had failed to explain that visual impact was potentially significant to openness: [2018] EWCA Civ 489.

The central issue was whether paragraph 90 of the National Planning Policy Framework required the council to consider the quarry extension's visual impact when deciding whether it would preserve the openness of the Green Belt.

1. Appeal allowed unanimously. Lord Carnwath, with whom Lady Hale, Lord Hodge, Lord Kitchin and Lord Sales agreed, held that the officer's report disclosed no error of law. The order of the High Court dismissing the judicial review application was confirmed.

2. Openness is a broad policy concept linked to the prevention of urban sprawl and the purposes served by Green Belts. It is not necessarily concerned with the visual quality of land and does not imply freedom from all development. Visual impact may be relevant in a particular case, but it is not an indispensable component of openness.

3. Paragraph 90 of the National Planning Policy Framework recognises that mineral extraction may be appropriate in the Green Belt if it preserves openness and does not conflict with the purposes of including land in the Green Belt. The shortened wording did not materially alter the earlier policy approach. The location-dependent, temporary and reversible nature of mineral working, together with restoration, may properly inform the assessment.

4. The interpretation of planning policy is a question of law, but applying a broad policy concept to particular facts ordinarily calls for planning judgement. Applying Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 and Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, the court held that the relevance and weight of particular effects upon openness are matters for the planning authority, subject to review for irrationality or other legal error.

5. Under section 70(2) of the Town and Country Planning Act 1990, omission of a consideration invalidates a decision only where statute or policy expressly or impliedly requires its consideration as a legal obligation, or where it is so obviously material that direct consideration is required. Paragraph 90 neither expressly nor impliedly made visual impact mandatory. Read fairly as a whole, the report addressed the openness proviso, including restoration and other spatial considerations. The limited visual effects identified fell well short of being so obviously material that failure to discuss them expressly amounted to an error of law. The weight given to the site's adjacency to an existing quarry was likewise a matter of planning judgement.

1. United Kingdom Supreme Court: The court allowed the council's appeal unanimously and confirmed the High Court's order dismissing the judicial review application: [2020] UKSC 3.

2. Court of Appeal: The court reversed the High Court, held that the planning officer's advice was defective because it omitted proper consideration of visual impact upon openness, and quashed the permission: [2018] EWCA Civ 489.

3. High Court, Administrative Court: Hickinbottom J dismissed the application. Visual impact was neither an implicit mandatory consideration under the openness proviso nor obviously material on the facts: [2017] EWHC 442 (Admin).