When North Yorkshire County Council granted permission for a six-hectare extension of a limestone quarry in the Green Belt, objectors said the planning officer had wrongly left visual impact out of the question whether the development would preserve the Green Belt’s openness. The Supreme Court held that openness in the National Planning Policy Framework is a broad planning concept, not a rule that visual effects must be assessed in every case. The officer’s advice disclosed no error of law, and the Court of Appeal’s decision to quash the permission was reversed.
The quarry extension
Darrington Quarries applied for a six-hectare extension to a working limestone quarry near Tadcaster. Extraction was expected to last seven years, after which the land would be restored.
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Permission granted in January 2013 had been quashed because of failings in the environmental impact assessment. The application returned to the county council’s Planning and Regulatory Functions Committee on 9 February 2016. The committee accepted the officer’s recommendation. After a section 106 agreement was completed, planning permission was granted on 22 September 2016.
Samuel Smith Old Brewery (Tadcaster) and Oxton Farm challenged that grant. Hickinbottom J dismissed the claim. The Court of Appeal, in a judgment given by Lindblom LJ, disagreed and quashed the permission. The county council appealed, supported by the quarry operator. Lord Carnwath gave the judgment of the Supreme Court; Lady Hale, Lord Hodge, Lord Kitchin and Lord Sales agreed.
What the policy required
The issue was the meaning of openness in paragraph 90 of the 2012 National Planning Policy Framework. That paragraph treats mineral extraction as not inappropriate in the Green Belt, provided it preserves the openness of the Green Belt and does not conflict with the purposes of including the land in the Green Belt. Inappropriate development is by definition harmful and should not be approved except in very special circumstances. If the proviso was not met, the extension would have had to be justified on that stricter basis.
Lord Carnwath read openness as a broad policy concept, linked to the stated aim of Green Belt policy: to prevent urban sprawl by keeping land permanently open. Openness is the counterpart of urban sprawl and is connected with the purposes of Green Belt designation. It does not mean that land must be kept free of every form of development. Paragraph 90 itself shows that mineral extraction may be appropriate and compatible with openness.
Openness is not, in itself, a statement about the visual quality of the landscape. Earlier national guidance had made clear that landscape quality is not an essential part of the openness for which Green Belt land is protected, and Lord Carnwath did not treat the shorter wording of the 2012 Framework as a significant change of approach. A quarry may be unattractive while it is being worked, but minerals can be extracted only where they are found, the working is temporary, and restoration can be required. As a barrier to urban sprawl, a quarry may be no less effective in Green Belt terms than agricultural land.
Visual impact is not legally irrelevant. The Court accepted the statement in Turner v Secretary of State for Communities and Local Government that openness is open-textured and that visual impact may be among the factors capable of being relevant. That statement does not decide when visual effects must be considered. Paragraph 90 does not expressly or impliedly require them to be assessed in every case. What is relevant to openness on particular facts is a matter of planning judgement, not a question of law.
The officer’s advice
The officer’s report ran to more than 100 pages. In the Green Belt section she recorded the objection that mineral extraction remained inappropriate unless openness was preserved and the purposes of including land in the Green Belt were not conflicted with. She advised that both parts of the proviso were satisfied. She said that openness is not defined, but is commonly taken to be the absence of built development. Although the land was agricultural, it immediately abutted the existing quarry and would not, in her view, introduce development of a scale that conflicted with preserving openness. The use would be temporary and restored.
The officer considered the purposes of Green Belt designation and discussed landscape impacts elsewhere in her report. The council’s landscape architect raised mitigation issues but did not object in principle.
Why visual impact did not have to be treated as legally essential
The objectors’ argument, accepted by the Court of Appeal, was that those visual effects were material considerations which had to be taken into account under the openness proviso. Lindblom LJ read the officer as narrowing openness to spatial impact and as failing to tell members that visual impact was potentially relevant and potentially significant. He treated the likely visibility of the exposed quarry face, and the possibility that bunding and planting would close off long-distance views, as quite obviously relevant to openness.
Hickinbottom J had held that any visual impact beyond the spatial impact was not, on these facts, an obviously material factor. Even if there were some such impact, purpose, duration and reversibility could still be taken into account in deciding whether openness would be preserved.
Lord Carnwath agreed with the High Court. The report identified and addressed the questions posed by paragraph 90, and there was no error of law on its face. The officer’s reference to the absence of built development did not mean that visual impact can never be relevant. It fitted the policy contrast between openness and urban sprawl, and the distinction between buildings, which are generally inappropriate, and other development, including mineral extraction, which may be appropriate.
The duty to have regard to material considerations comes from section 70(2) of the Town and Country Planning Act 1990. A factor must be considered as a matter of legal obligation only where the Act or the policy expressly or impliedly requires it, or where on the facts it is so obviously material that failing to consider it directly would not accord with the Act. Visual impact was not required by paragraph 90. In the context of this six-hectare extension, and taking account of other matters including the spatial separation noted by the officer, the relatively limited visual impact fell far short of being so obviously material that silence about it was unlawful. The weight given to the fact that this was an extension of an existing quarry, and to the restoration that would be required, was also planning judgement rather than an error of law. Policies in the Selby District Core Strategy Local Plan, and the Framework’s general minerals policies, were not said to affect that analysis.
Verdict: The Court unanimously allowed the appeal and restored the High Court’s dismissal of the judicial review claim. The planning permission stood. Whether visual effects matter to openness depends on the proposal and the applicable policy.
