R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council
[2020] UKSC 3
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The “openness” of the Green Belt in para 90 of the NPPF is a broad policy concept, the counterpart of urban sprawl, and is not necessarily a statement about the visual qualities of the land. Neither the Town and Country Planning Act 1990 nor the policy makes visual impact a mandatory consideration in applying the openness proviso: the matters relevant to openness in any particular case are a matter of planning judgement, not law, and a failure to address visual impact expressly is an error of law only where it is so obviously material as to require direct consideration.
Facts
Darrington Quarries Ltd applied for planning permission for an extension of about six hectares to Jackdaw Crag Quarry, a magnesian limestone quarry of some 25 hectares in the Green Belt about 1.5 kilometres south-west of Tadcaster, expected to yield around two million tonnes of crushed rock over seven years. North Yorkshire County Council granted permission in September 2016 after its planning officer advised that the development would preserve the openness of the Green Belt, observing that openness is commonly taken to be the absence of built development. Samuel Smith Old Brewery (Tadcaster) and Oxton Farm challenged the grant; Hickinbottom J dismissed the claim, but the Court of Appeal quashed the permission, holding that the officer's advice was defective in failing to make clear that visual impact was a potentially relevant and potentially significant factor in assessing the effect on the openness of the Green Belt.
Judgment Summary
The Supreme Court unanimously allowed the council's appeal and restored the order dismissing the challenge. Lord Carnwath held that there was no error of law on the face of the officer's report: para 90 of the NPPF does not expressly refer to visual impact as a necessary part of the analysis, nor is it made so by implication, and the officer's equation of openness with the absence of built development was very similar to Lindblom LJ's own observation in the Lee Valley case. Endorsing Sales LJ's open-textured approach in Turner and disapproving Green J's contrary statement in Timmins v Gedling, he agreed with Hickinbottom J that the development's relatively limited visual impact fell far short of being so obviously material a factor that failure to address it expressly was an error of law.
Key Quotes
"Openness is the counterpart of urban sprawl and is also linked to the purposes to be served by the Green Belt. As PPG2 made clear, it is not necessarily a statement about the visual qualities of the land, though in some cases this may be an aspect of the planning judgement involved in applying this broad policy concept."
— Lord Carnwath, para 22(verbatim, verified against the judgment)
"Paragraph 90 does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law."
— Lord Carnwath, para 39(verbatim, verified against the judgment)
Subsequent Treatment
The leading modern authority on Green Belt “openness” under national planning policy. The judgment approved Sales LJ's statement in Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 that openness is open-textured and not narrowly volumetric, and confirmed the disapproval of Green J's holding in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin) that it was wrong in principle to reach a conclusion on openness by reference to visual impact.
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