SH July 20 Newsletter final - Page 5



CURRENT PLANNING ISSUES
Mineral Extraction and “Openness” in the Green Belt
February saw the Supreme Court hand down judgement in a case concerning ‘openness’ in the Green
Belt in so far as it relates to mineral extraction and the correct interpretation of the NPPF in relation to this
matter - R (on the application of Samuel Smith Old Brewery (Tadcaster) and others) (Respondents) v North
Yorkshire County Council (Appellant).
The case concerning an extension to Jackdaw Crag Quarry in North Yorkshire, operated by Darrington
Quarries Ltd, reconfirms the relationship between ‘openness’ and ‘visual impact’ in the Green Belt.
The First and Second Respondent brought judicial review proceedings against the decision by the
Appellant to grant planning permission. They said, among other things, that the officer’s report upon which
the Authority had based its decision to grant planning permission erred in its analysis of “openness” in
paragraph 90 of the (original) NPPF in that it did not consider visual impact.
Lord Carnwath reminds us that the visual quality of the landscape is not an essential part of the ‘openness’
for which the Green Belt is protected but nevertheless may be a relevant consideration.
In referring to the concept of ‘openness’ in paragraph 90 of the NPPF as a ‘broad policy concept’ Lord
Carnwath notes that ‘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. Nor does it imply freedom from any development.’ [para 22]
He found the extent to which visual impact is a material consideration in the discussion of openness is a
matter of planning judgement not law.
The Supreme Court allowed the appeal paving the way for Darrington Quarries Ltd to extend the quarry.
Section 73 and Variation of Description
Since the Finney case last year (Finney v Welsh Ministers [2019] EWCA Civ 1868) many minerals operators
may be uncertain about the correct application of Section 73 in the Town and Country Planning Act 1990.
On the face of it S73 enables the grant of permission for developments without complying with conditions
subject to which a previous permission has been granted. However, in the Finney case the Appeal Court
found that S73 cannot be used to ‘change the description of the development’.
In May 2020 the Supreme Court refused the Welsh Minister’s application for permission to appeal the case
and therefore the Court of Appeal’s ruling stands.
In light of the above, it is evident that amendments to the description of an authorised development are no
longer appropriate despite historic practice of some planning authorities.
The case has clear repercussions for operators; local planning authorities; buyers seeking to acquire sites
conditional on planning permission; and objectors seeking to challenge Section 73 permissions.
Stephenson Halliday can advise clients whether a change will need a full planning application or an
application under Section 73 or whether it could be dealt with as a non-material amendment under Section
96A.
www.stephenson-halliday.com
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