High Court quashes 90-home approval due to incorrect application of green belt rules

Broxbourne Borough Council granted outline consent in April 2014 for floristry company Britannia Nurseries' plans to demolish former nursery buildings and structures and build a 90-home development on 4.4 hectares of land within Lee Valley Regional Park.

The Lee Valley Regional Park Authority (LVRPA) challenged the decision, claiming that a planning officer's report to the Council's planning committee had taken an unlawful approach to the treatment of green belt land.

The officer had noted that the proposed development would be contrary to a policy of the local development plan that sought to restrict development within the green belt. However, the report said that the National Planning Policy Framework (NPPF) allowed for a more "limited infilling or partial or complete redevelopment of previously developed sites", provided that "the openness of the green belt is not compromised".

In a decision dated 30 January, Mr Justice Ouseley said that the officer's report had been incorrect to treat the whole site as being "previously developed land" and that the Council's decision should be quashed. The judge said that, while the southern part of the site, which contained the former nursery buildings, could be considered to have been previously developed, the open, grass-covered northern part could not.

"The committee had to be advised that part only of the site was previously developed land and as to the significance of green belt policy terms of that fact," the judge said. "This would be done by treating the site as two parts: the southern part which was for these purposes accepted as previously developed land to which the new flexibility could apply, subject to the issue of openness; and the northern part, the development of which for housing would be a clear breach of [the local plan policy restricting green belt development] and of the NPPF, which should be refused in the absence of sufficient very special circumstances."

Mr Justice Ouseley agreed with JVRPA that the planning officer's approach to the concept of 'openness' was a second ground for quashing the Council's decision. The officer's report had concluded that the development could "secure significant long term benefits to the openness ... of the green belt". The judge found that, while there could be a benefit to the openness of the southern part of the site under the plans, the report ought to have addressed the impact of developing the open, northern part for housing.

"The spread of urban housing development over the northern site is such an obvious and extensive increase in the developed area and in the area of openness lost, that I do not see, in the absence of clear analysis and explanation, how the report rationally could have avoided saying that there was a significant loss of openness … and that that was a breach of the NPPF as well as of [the green belt policy in the local development plan]," the judge said.

The judge rejected JVRPA's arguments that the committee had been misled by the inclusion of housing need within the "very special circumstances" cited for allowing the development; that it would be unlawful to include the attractiveness of a development as a "very special circumstance"; and that more information should have been provided to the committee about alternatives for dealing with the dereliction of the appeal site. He also rejected the argument that a plan for the regional park should have been incorporated into the local development plan.

Allowing the appeal on the first two grounds, the judge quashed the Council's decision to grant permission. The application, therefore, remained to be determined, the judge said. "There may be very special circumstances", said Mr Justice Ouseley, "but they have to be addressed properly, even if they apply only to enable part of the site to be developed".