One Source Aug 20 Composite 600 final

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Interpreting green wedge policy

Paul G Tucker QC and Constanze Bell analyse a recent Court of Appeal judgment regarding the interpretation of green wedge policy.

The Court of Appeal has handed down judgment in LOGS v Liverpool City Council & Ors [2020] EWCA Civ 86. We acted for Liverpool City Council and succeeded in persuading the court that there had been no misinterpretation of ‘Green Wedge’ policy when planning permission was granted for a residential housing scheme on land adjoining Calderstones Park in Liverpool.

The Court of Appeal was persuaded to entertain the appeal despite assurances that the planning permission under challenge would not be implemented, successfully arguing that whilst technically ‘academic’ the appeal raised issues of public importance and should proceed (see [5]-[11]).

Lindblom LJ, giving judgment for the court, observed that the legal principles underpinning academic appeals are established:

[6] The relevant legal principles are clear. In R. v Secretary of State for the Home Department, ex parte Salem [1999] 1 A.C. 450, Lord Slynn said (at p.457A-B) that “… appeals which are academic … should not be heard unless there is a good reason in the public interest for doing so …”. In Hutcheson v Popdog Ltd. (News Group Newspapers Ltd., third party) (Practice Note) [2012] 1 W.L.R. 782, Lord Neuberger of Abbotsbury M.R. (at paragraph 15) identified “three requirements” that “have to be satisfied before an appeal, which is academic between the parties, may … be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated”. And in Hamnett v Essex County Council [2017] 1 W.L.R. 1155, Gross L.J. (at paragraph 37) noted that the authorities did not suggest any “inflexible rule”, but “point to the court having a narrow discretion to proceed, to be exercised with caution – even when a point of public law of some general importance is involved”.  

Ultimately, the Court was of the view that it “should exercise our “narrow discretion” to hear an appeal said to have broader relevance and importance than to the case itself” (at [9]). The Court considered that the Green Wedge policy argument was not only a question of significant importance for planning in Liverpool but was a point of some general importance (at [11]). Both grounds of appeal would be heard including the question of compliance with the section 66(1) duty which was not a point of wider importance, because to succeed in overturning the part of the judge’s order by which he quashed the planning permission, the city council would have to win on both issues.

The Court of Appeal dismissed the appeal in part on the basis that there had been a failure to comply with the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and so upheld the decision to quash planning permission for the residential scheme.

The decision is a must-read for planners and lawyers interested in how to approach ‘Green Wedge’ policies and other policies dealing with ‘open character’ and related concepts. The Court of Appeal noted that under Green Wedge policy OE3 two questions arose for the decision maker under part ‘i’ of the policy: whether the development proposed would affect the predominantly open character of the Green Wedge (a matter of planning judgment) and whether it would reduce the physical separation between existing built up areas (a question of fact) (at [43]). The Court endorsed a pragmatic approach, the question of whether development would affect the predominantly open character of the Green Wedge required a realistic assessment of the impact of the development, (at [44]):

[44] When the city council is considering whether a development would “affect the predominantly open character” of a Green Wedge, the planning judgment required is not limited by Policy OE3 to a consideration of its physical or spatial effects alone, excluding visual impact. Whether it would “affect the predominantly open character” is not an automatic result of its physical presence in the Green Wedge, or of the fact that it will be visible. What is required is a realistic assessment of the impact that this development, on this site, and in its own surroundings, will have on the “the predominantly open character” of the Green Wedge. Whether that impact is acceptable, or not, is for the city council to judge, as decision-maker.

The Court enlarged on the authority regarding ‘openness’ at [33]:

[33] To enlarge on the basic points recently identified by this court in Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486 (at paragraph 7):

(1) The imperative of preserving the “openness” of the Green Belt – a basic component of government policy for the Green Belt in the NPPF, as in previous statements of national policy – is not a concept of law; it is a broad concept of policy (see Hook, at paragraph 7(1)). As with other formulations of planning policy, its meaning is to be derived from the words the policy-maker has used, read sensibly in their “proper context”, and not as if they were the provisions of a statute or contract (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] 2 P. & C.R. 9, at paragraphs 18 and 19).

(2) Applying the policy imperative of preserving the “openness” of the Green Belt requires realism and common sense. As was emphasised both by this court in Samuel Smith (at paragraphs 33, 38 to 40 and 50), and by the Supreme Court (at paragraphs 22 and 25), it involves the exercise of planning judgment by the decision-maker. When it considers whether the decision-maker has exercised a lawful planning judgment in applying a planning policy, the court will not be taken beyond its limited role in a public law challenge (see the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1458G to p.1459D). As this court has often said, an unduly legalistic approach must be avoided (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2018] P.T.S.R. 88, at paragraph 50; and Hook, at paragraph 7(2)). But if an error of law is shown – such as a misinterpretation of policy leading to a failure to exercise a planning judgment that the policy requires – the court will intervene.

(3) The courts’ reasoning in Lee Valley, Turner and Samuel Smith dispels the fallacy that the visual effects of a development cannot be relevant to the question of whether it will preserve the “openness” of the Green Belt. In both Turner (at paragraphs 13 to 18 and 26) and Samuel Smith (at paragraphs 19 to 22) the Court of Appeal accepted that, in principle, such effects can be relevant to this question, as a matter of planning judgment. And this was accepted by the Supreme Court in Samuel Smith (see paragraphs 22, 25 and 40).

(4) Those three cases demonstrate the importance of context to a true understanding of the policy being considered. Context governs the policy’s meaning. Thus, for example, the aim of preserving the “openness” of the Green Belt was not limited by the proposition in paragraph 79 of the NPPF that one of the “essential characteristics” of Green Belts is their “openness” – a concept whose meaning, in that context, goes to the mere physical presence, or otherwise, of buildings, regardless of any visual impact they might have (see Lee Valley, at paragraph 7; and Hook, at paragraph 7(3)). As this court said in Lee Valley (at paragraph 7), specifically in the context of paragraph 79, “[the] concept of “openness” here means the state of being free from built development, the absence of buildings – as distinct from the absence of visual impact”. But this does not mean that, in the context of the development control policies in paragraphs 87 to 90, harm to “openness” cannot be caused by forms of development other than buildings – such as those referred to in paragraph 90, which contains a proviso that they “preserve the openness of the Green Belt”; or cannot be caused by a development’s visual impact on “openness”. If it were otherwise, those policies would not make sense.

(5) There was no indication in paragraphs 87 to 90 of the NPPF that the aim of preserving the openness of the Green Belt excludes consideration of visual as well as physical or spatial impact. On the contrary, as Sales L.J. said in Turner, “[the] word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case” (paragraph 14); “[the] question of visual impact is implicitly part of the concept of [the] “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF” (paragraph 15); and “it does not follow from the fact that there may be other harms with a visual dimension apart from harm to the openness of the Green Belt that the concept of openness of the Green Belt has no visual dimension itself” (paragraph 16). The correctness of those observations was not doubted by the Supreme Court in Samuel Smith.

The judgment also revisits the question of compliance with the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (see [56]-[59]). In the instant case the Court held that the officer’s failure to tell the committee of the “strong conservation objections” raised by the Urban Design and Heritage Conservation team to the construction of three houses in the setting of Beechley House, was sufficient to displace the presumption that the section 66(1) duty had been properly performed (at [73]). The failure to communicate an internal consultation response regarding heritage and conservation was fatal and serves a stark reminder to local planning authorities of the importance of placing consultation responses before the planning committee.

Paul G Tucker QC and Constanze Bell are barristers at Kings Chambers.