What does the recent High Court decision mean for rural areas?
The recent High Court decision (Dartford Borough Council v Secretary of State for Communities & Local Government) has held that the definition of ‘previously developed land’ (also known as brownfield land) within Annex 2 of the Government’s National Planning Policy Framework (NPPF) excludes residential gardens in “built-up” areas only, but not those residential gardens elsewhere. The Deputy High Court Judge held that where the wording within the NPPF’s definition sets out a clear exemption to the normal definition of previously developed land, which it states includes “land in built-up areas such as private residential gardens”. As such, the Court’s judgement is that the previous commonly held view that all gardens should be excluded from the definition of previously developed/brownfield land, and a presumption in favour of development, is incorrect.
The term ‘garden grabbing’ is somewhat inflammatory but is, nonetheless widely used, and people may perceive the decision to mean that rural areas will now become subject to high density development.
The Court said there is a rational explanation for the distinction between urban and other gardens. It held that undeveloped land within urban areas is always subject to high-demand for future development, meaning it can be regarded to be at a premium and should therefore be afforded greater protection. Ergo those gardens outside such areas, for instance in rural areas, require less protection from development and do not need to be exempt from the definition of previously developed/brownfield land.
One should therefore be mindful of paragraph 111 of the NPPF, where it states: “Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value.” The potential consequences of this High Court decision and the interpretation of paragraph 111 is that because it can be interpreted as previously developed land, there should now be a presumption in favour of developing garden land that is located in the rural area.
This obviously has potentially negative repercussions for the Government’s objective of promoting sustainable development, and might result in the random and ad hoc development of gardens in the rural area.
One wonders whether this will see local planning authorities rushing to produce development plan policies that more accurately define its ‘built-up areas’, although this is not necessarily straight forward – should there be a distinction between urban areas in towns and cities and those of villages? Or should the distinction be more blunt, and exclude those gardens of dwelling houses outside of an arbitrarily drawn boundary around specific settlements?
It remains to be seen whether this High Court decision will be challenged, or if the Government will seek to amend the NPPF to take account of the judgement or to clarify the likely original intention of the definition of previously developed land. Certainly we are not convinced that this judgement reflects the original intention of the NPPF.
For the time being this judgement might make it easier to obtain planning permission for this type of development outside of built-up areas, although for how long is open to further debate. One must also bear in mind that there is likely to be uncertainty amongst applicants/developers and local authority planning officers, regarding the definition of ‘built-up areas’, meaning this ambiguity could result in the refusal of planning applications for development on garden land.
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