The High Court has recently clarified the approach to be taken when interpreting ‘building’ for the purposes of the National Planning Policy Framework (the NPPF). InTandridge District Council v Secretary of State for Communities and Local Government [1], it has now been acknowledged that ‘building’ can refer to either a singular or multiple structures on a site. This has important planning implications, particularly in relation to Green Belt policy.

Protection of Green Belt

Paragraphs 79 to 92 of the NPPF provide for protection of Green Belt land. Inappropriate development is regarded as harmful to the Green Belt and, thus, not to be approved except in “very special circumstances”. New development and buildings within the Green Belt are therefore generally inappropriate, unless they fall within a limited number of exceptions. 

Exceptions are detailed in Paragraph 89 and include:

  • buildings for agriculture and forestry
  • provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as the openness of the Green Belt is preserved and there is no conflict with the purposes of including land within it
  • the extension or alteration of a building, provided this does not result in disproportionate additions over and above the size of the original building
  • the replacement of a building, as long as the new building is in the same use and not materially larger than the one it replaces
  • limited infilling in villages and affordable housing for local community needs, following Local Plan policies
  • limited infilling or the partial / complete redevelopment of previously-developed sites (brownfield land) – whether redundant or in continuing use (excluding temporary buildings) – which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it, when compared to the existing development.

Background

Against the initial decision of Tandridge District Council (the Council), in December 2014 a Planning Inspector granted permission for demolition of an existing three-bedroom dwelling-house, utility building, detached garage and a number of trees on land at Castleneau, Tatsfield, Surrey. Under the same consent, the applicant received permission to subsequently construct a replacement dwelling-house and driveway. In granting consent for the new dwelling, the Inspector acknowledged the site’s location in the Green Belt, but deemed the proposal to fall within the ‘replacement of a building’ exception within the NPPF. 

The Council subsequently appealed the Inspector’s grant of permission, under section 288 of the Town and Country Planning Act 1990 (TCPA 1990). One of the Council’s arguments was that the Inspector had erred in law, having misinterpreted the NPPF exception. The exception had been used to allow replacement of a small group of existing buildings, rather than just one single building. 

The Council contended that, as a matter of law, the policy meant a proposed new building could only be compared with an existing single building. There could not be comparison, when considering whether the replacement was “materially larger”, with a group of two or more buildings. 

How has this been clarified by the High Court?

The High Court dismissed the appeal.

In considering this element of the Council’s challenge, the judge noted that ‘building’ has a distinct meaning in the planning context. In the recent case of Timmins [2], the Court of Appeal had applied this statutory definition in relation to Paragraph 89 of the NPPF. Hence, the High Court could follow suit. 

In TCPA 1990 (section 336(1)), ‘building’ is defined as including “any structure or erection and any part of a building, as so defined, but does not include plant and machinery comprised in a building”. As a statutory term, ‘building’ is therefore to be viewed in light of the Interpretation Act 1978 (IA 1978). This provides that, unless there is proof of contrary intention, “words in the singular include the plural and words in the plural include the singular”. 

In handing down judgment, the court found there was nothing to militate against ‘building’ being read in the plural (where appropriate) in the context of TCPA 1990. Although policy documents do not automatically fall under IA 1978, it gave indirect support to the view that the plural will be appropriate in certain situations when interpreting the NPPF. Deputy Judge Elvin QC stated: “I do not consider that ‘building’ should be read as excluding more than one building, providing as a matter of planning judgment they can sensibly be considered together in comparison with what is proposed to replace them”. 

This view was apparently supported by the NPPF as a whole and the objectives of the Green Belt policy in particular. The judge reinforced that Green Belt policy aims to prevent urban sprawl by keeping land permanently open, with the essential characteristics of Green Belt being its openness and permanence. The five purposes of the Green Belt were restated (as per Paragraph 80 of the NPPF), as being:

  • to check the unrestricted sprawl of large built-up areas
  • to prevent neighbouring towns merging into each other
  • to assist in safeguarding the countryside from encroachment
  • to preserve historic town’s setting and special character
  • to aid urban regeneration, by encouraging recycling of derelict and other urban land.

Comment

The Tandridge case reinforces the importance of IA 1978 when interpreting even basic statutory definitions. Referencing key statues, such as TCPA 1990, also remains important when establishing and applying meaning in the planning context – both for interpretation of statutory words / phrases and policy documentation.

This is the third recent case examining the correct approach to Green Belt policy in the NPPF. In Redhill Aerodrome Ltd [3], the court examined what should be considered as part of the balancing exercise in determining whether “very special circumstances”exist – so as to allow otherwise inappropriate development in the Green Belt. Under NPPF, “very special circumstances” will not exist unless “the potential harm to the green belt by reason of inappropriateness, and any other harm [our emphasis], isclearly outweighed by other considerations”. The Court of Appeal held that “any other harm” is to include non-Green Belt harm.  

In Timmins, the High Court’s decision was upheld in finding that there are limits to the exceptions contained within Paragraph 89 of the NPPF. A material change of use of the land from agricultural-use to a cemetery did not fall in any of the exceptions, with Paragraph 89 to be regarded as a closed list. The change to a cemetery was therefore not appropriate development. As a result, there had been misapplication of the “very special circumstances” test.

Policy changes

The focus on protecting Green Belt and open countryside more generally has been reinforced in a recent report: ‘Planning and travellers: proposed changes to planning policy and guidance’ (August 2015) (the Report). The Report clarifies the approach going forward following the previous Government’s consultation on planning for traveller sites in autumn 2014. 

  • There is to be no specific, new guidance regarding the special protection to be given for open countryside when local planning authorities are considering traveller-site applications. However, the Report emphasises that the current Planning Policy for Traveller Sites (PPTSmust be read in conjunction with the NPPF. 
  • A local authority’s inability to demonstrate an up-to-date five-year housing supply will continue to be a significant material consideration in planning decisions, essentially weighing in favour of permission being granted for traveller sites (as per PPTS Paragraph 25).  However, this is no longer the case for land designated as Green Belt and other sensitive areas – where it will just be one of a number of material considerations. Paragraph 25 is to be amended accordingly. 
  • Traveller communities’ unmet need and personal circumstances are unlikely to clearly outweigh harm to the Green Belt, and any other harm, so as to establish“very special circumstances”.  The Government has clarified that this change applies equally to both settled and traveller communities.
  • To give greater protection to the countryside, Paragraph 23 of PPTS will be amended. It will now read: Local planning authorities should very [our emphasis – new addition] strictly limit new traveller development in open countryside”.