R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council

The central legal question was whether the local planning authority misinterpreted the word "openness" in national Green Belt policy, as set out in paragraphs 79–90 of the National Planning Policy Framework (the NPPF), when deciding to grant planning permission for an extension to a quarry. The Court analysed the interaction between the specific exception for "mineral extraction" in paragraph 90 and the proviso that such development must "preserve the openness of the Green Belt".

The Supreme Court held that the concept of "openness" in para 90 is a broad, planning judgment-linked concept and does not, as a matter of law, require visual impact to be treated as an automatically necessary element of the test in every case. Whether visual impact is a material consideration for the purposes of the proviso is a matter for the relevant decision-maker unless that consideration is "so obviously material" that omission to address it would amount to an error of law.

On the facts, the Court concluded that the officer's report had addressed openness and related matters and that any visual impacts identified were not so obviously material that the failure to single them out in terms imposed a legal error. Accordingly the appeal was allowed.

This was an appeal from the Court of Appeal ([2018] EWCA Civ 489) which had quashed planning permission for an extension to Jackdaw Crag Quarry on the ground that the planning officer had given defective advice to members by failing to make clear that visual impact was a potentially relevant and significant factor in assessing whether the proposed mineral extraction preserved the openness of the Green Belt under paragraph 90 of the National Planning Policy Framework.

Background and parties:

• The applicants for judicial review (Samuel Smith Old Brewery, Oxton Farm and others) sought to challenge the county council's grant of planning permission for a six hectare extension to an existing magnesian limestone quarry in the Green Belt. The quarry operator (third respondent) supported the council. Planning permission had been granted following committee approval and completion of a section 106 agreement; an earlier permission had been quashed on environmental assessment grounds.

Nature of the application: The respondents applied for judicial review of the planning permission; their primary contention on judicial review was that the authority had misunderstood or misapplied the NPPF test in para 90 (the "openness proviso") by failing to treat the visual impact identified in the officer's landscape assessment as a material factor for the committee's decision.

Issues framed:

• Whether the word "openness" in para 90 of the NPPF necessarily and as a matter of law imports visual impact as an essential element of the test for whether mineral extraction is "not inappropriate" in the Green Belt.
• Whether the planning officer's report was legally defective for not expressly treating visual impact as part of the openness assessment, and if so whether that vitiated the committee's decision.
• What is the appropriate standard for judicial review where the complaint is that a planning authority did not address a particular consideration?

Court's reasoning:

• The Court placed the NPPF provisions in historical context and explained that Green Belt "openness" is an open-textured policy concept tied to the stated objective of preventing urban sprawl; it is not necessarily a statement purely about visual amenity.
• Authorities were discussed to show the limits of legal interpretation in planning: some prior cases had distinguished spatial openness (freedom from built development) from visual impact, while other authorities had recognised that visual effects may in some cases be relevant to openness. The question of relevance of visual impact is typically one of planning judgment rather than of law.
• The Court accepted the view that a decision-maker need only be taken to have erred in law for failing to consider a factor where the statute or policy expressly or impliedly requires it, or the matter is "so obviously material" that omission to address it would be legally obligatory. Applying that principle, the Court concluded that paragraph 90 does not, as a matter of law, make visual impact an inevitably required element of the openness assessment, and on the facts of this case the visual impacts identified in the officer's landscape assessment were not so obviously material as to give rise to an error of law if not dissected separately in the officer's advice.

Procedural history: The High Court (Hickinbottom J) had dismissed the judicial review application; the Court of Appeal (Lindblom LJ leading) reversed and quashed the permission on the officer-advice ground. The Supreme Court allowed the council's appeal and confirmed the order of the High Court dismissing the application.

Subsidiary findings: The Court emphasised the distinction between legal interpretation and planning judgment, noted that mineral extraction has particular characteristics (temporary, reversible, can only take place where minerals occur) and that other planning constraints may still render an otherwise "appropriate" Green Belt proposal unacceptable. The Court criticised the Court of Appeal's conclusion that the officer's report displayed a misunderstanding of para 90 and found no error of law on the face of the report.

Appeal allowed. The Supreme Court held that the NPPF paragraph 90 proviso does not as a matter of law require visual impact to be treated as an essential and always determinative element of the openness assessment; whether visual impact is material is a matter of planning judgement unless it is "so obviously material" that omission to address it is an error of law. On the facts, the officer's report addressed openness and related matters adequately and there was no legal error requiring quashing of the permission. The High Court order dismissing the judicial review was therefore confirmed.

The judicial review was heard in the High Court (Hickinbottom J) and dismissed ([2017] EWHC 442 (Admin)). The Court of Appeal allowed the challenge and quashed the planning permission ([2018] EWCA Civ 489). The county council appealed to the Supreme Court, which allowed the appeal and confirmed the High Court order (this judgment: [2020] UKSC 3).