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Green Belt Openness

The Supreme Court’s recent decision in Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council and Dorrington Quarries [2020] looked again at the issue of development which is not inappropriate, provided openness in the Green Belt is preserved and the development does not conflict with the purposes of including land in the Green Belt, in paragraph 90 of the 2012 NPPF (paragraph 146 of the current NPPF). A similar Green Belt appropriateness issue was considered at length in our client’s High Court and Court of Appeal cases of Europa Oil and Gas v Secretary of State for Communities and Local Government and Ors, back in 2013 and 2014. There both Courts held that mineral exploration formed part of extraction, so the same Green Belt openness test was to be applied. 

The Supreme Court in the Samuel Smith case considered whether it was necessary (rather than just permissible) to take landscape and visual impacts into account, in deciding whether openness was preserved. It was held unanimously that it was not necessary to take them into account (and so it was not necessary to apply a Tesco v Dundee level of legal analysis in considering whether openness was preserved or not, but instead a Hopkins Homes broader approach). Lord Carnwath confirmed that “visual quality of landscape is not in itself an essential part of the “openness” for which the Green Belt is protected”, nor was the visual impact so obviously material here, as to require such direct consideration. The issue which had to be addressed, as a matter of planning judgement, was therefore whether the proposed mineral extraction, through the extension of the quarry, would preserve the openness or otherwise conflict with the purposes of including the land in the Green Belt. The planning officer’s report was held to have considered the broad policy concept of Green Belt openness appropriately and so the Council was correct to have accepted it and allowed the development. This Supreme Court judgment should now reduce the scope for legal challenges of decisions on openness.

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