R (Samuel Smith Old Brewery) v North Yorkshire CC [2020] UKSC 3

Key Point

  • ‘Broad’ policy concepts such as ‘openness’ in the present case are not apt for strict judicial oversight, but ‘specific’ policy concepts and their interpretations are a matter for the courts.

Facts

  • Under paragraph 90 of the National Planning Policy Framework (NPPF) developments in the green belt are not inappropriate if they preserve the ‘openness’ of the green belt and do not conflict with the purposes of including land in the green belt.
  • In this case, a quarry operator (S) applied for planning permission to extend their quarry which was situated in the green belt.
  • The planning officer looked at a wide range of planning considerations including whether the proposal would preserve the openness of the green belt; the local planning authority awarded planning permission.
  • This decision was challenged in the High Court and Court of Appeal with the latter holding that visual impact was relevant and a potentially significant factor in the local planning authority’s approach to the effect on the development of the ‘openness’ of the green belt; the planning permission was quashed.
  • S appealed to the Supreme Court.

Held (Supreme Court)

  • Appeal Allowed
  • ‘Openness’ was a broad policy concept and the aspects relevant to ‘openness’ were “a matter of planning judgment, not law”

Lord Carnwath

Interpreting the NPPF

  • On a proper reading of the NPPF in its proper historic context visual quality of landscape is not in itself an essential part of openness for which the Green Belt is protected [5]
  • While the text of paragraph 90 of the NPPF has changed from that in Planning Policy Guidance 2: Green Belts (published 1995, amended in 2001), there has been no significant change of approach [12]

Legal Principles

  • Lord Reed in Tesco Stores v Dundee City Council:
    • “Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse …”
  • In the Hopkins Homes case (paras 23-34) I warned against the danger of “over-legalisation” of the planning process. I noted the relatively specific language of the policy under consideration in the Tesco case, contrasting that with policies:
    • “expressed in much broader terms [which] may not require, nor lend themselves to, the same level of legal analysis …”
  • The concept of “openness” in paragraph 90 of the NPPF is a broad policy concept which is the counterpart of urban sprawl and is linked to the purposes to be served by the Green Belt. Openness is not necessarily a statement about the visual qualities of the land, nor does it imply freedom from all forms of development [22].

Material considerations (s.70(2) Town and Country Planning Act 1990)

  • The question is, therefore, whether visual impact was a consideration which, as a matter of law or policy, was necessary to be taken into account, or was so obviously material as to require such direct consideration [32].

Current Case

  • “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.” [39]
  • The officer’s report does not suggest that visual impact can never be relevant to openness [40].
  • The relevant paragraphs of the officer’s report addressing openness must be read together. Some visual effects were given weight in the consideration of the restoration of the site. The relatively limited visual impact fell far short of being so obviously material that failure to address it expressly was an error of law, as did the fact that the proposed development was an extension to the quarry. These were matters of planning judgement and not law [41].

Commentary

  • Compare the approach of the court in this case to other cases involving policy.
  • This case is the final instalment of a recent trilogy of cases in the Supreme Court concerning the interpretation of planning policy.
  • In Tesco Stores v Dundee City Council [2012] UKSC 13, Lord Reed held that the approach of the courts was that the authoritative interpretation of planning policy is a matter to be determined by the courts, not the planning authority.
  • However, in Suffolk Coastal DC v Hopkins Homes [2017] UKSC 17, Lord Carnwath rowed back from this position and adopted a more nuanced approach to interpretation of planning policy, fleshing out the distinction between ‘relatively specific’ policies and policies expressed ‘in much broader terms’.
  • Samuel Ruiz-Tagle, Samuel Smithand Judicial Review of Policy Interpretation: A Middle Way in the Law and Policy Divide, Journal of Environmental Law, Volume 32, Issue 3, November 2020, Pages 577–587:
    • “‘The courts’, expressed Lord Carnwath in Hopkins Homes, ‘should respect the expertise of the specialist planning inspectors’. The Court thus acknowledged that the interpretation of policy may require relevant ‘planning knowledge’, ‘expert technical experience and qualification’, which might justify a rather cautious judicial attitude.”
    • “The rationale underpinning this judicial reasoning, therefore, reveals ‘a practical appreciation of their own institutional limitations’ to engage fully in policy interpretation. It demonstrates an awareness that the courts have an ‘epistemic deficit’, and thereby a ‘method of prudence’ in review of policy interpretation is adequate.”
    • “Additionally, the Court’s reasoning denotes a deeper thinking about the role of the judiciary and legal reasoning in the functioning of the planning system, which is anchored in the specific legislative and policy framework within which planning law adjudication operates. The courts have recurrently observed that the planning system is administered by planning authorities that deal with planning problems not through applying ‘legalistic analysis’ but by utilising their expertise, familiarity with central government policy or local knowledge.”