The onus is increasingly on developers and planning authorities to consider how proposed projects comply with stricter interpretations of laws on everything from green-belt land to listed buildings. Chris Tofts looks at some recent cases.

A recent judgment involved land near the Grade I-listed Kedleston Hall. Photograph: Hans A Rosbach/Wikimedia Commons

Interpretation of legislation is becoming stricter. Recent judgments are changing established thinking in minerals planning, and the government is putting more focus on housing. Below are some cases highlighting recent court decisions with wider implications for the minerals sector.

Proposing development near European sites always needs to be approached carefully, even more so following a European Court of Justice decision from April this year. The case involved wind power, but goes beyond this.

People Over Wind (POW) objected to a wind farm in Co Laois, Ireland, on the basis that it would threaten the future of the Nore freshwater pearl mussel, a species thought to be unique to the River Nore region. POW challenged the developers’ determination that works to connect the wind farm to a substation did not require a full appropriate assessment under the Habitats Directive.

The question before the court was whether mitigation, which avoids a likely significant effect on a European site, should be considered at the screening stage, or whether it can only be considered within the full appropriate assessment.

The court concluded mitigation measures should not be considered at the screening stage. The judgment has already attracted criticism for imposing an unnecessary regulatory burden, and will be seized upon by opponents to schemes where the screening process has taken account of mitigation.

The decision also needs to be viewed in the context of paragraph 177 of the new National Planning Policy Framework (NPPF), which states that developers only benefit from the presumption in favour of sustainable development if the project does not require an appropriate assessment. So now, if it projects do need an appropriate assessment, they will lose the benefit of the presumption in favour of sustainable development.

Green belt – openness

Another case from 2018 the minerals sector may need to consider concerns development in the green belt. Paragraph 143 of the NPPF defines inappropriate development in these areas as harmful to the green belt and states that it should not be approved except in very special circumstances.

However, paragraphs 145 and 146 say that some forms of development are not inappropriate, provided they preserve the openness of the green belt and do not conflict with the purposes of including land in green belt. Mineral extraction is one such form of development listed in paragraph 146.

In the Samuel Smith Old Brewery case, the appeal court quashed a mineral planning authority’s grant of planning permission to extend a limestone quarry in the green belt after the authority’s planning officer failed to take into consideration the visual impact of the proposed extension when she assessed its likely effect on the openness of the green belt.

The officer’s conclusion overall was that proposed screening of the quarry extension would be effective mitigation, without which the development would not be acceptable. But no consideration was given to the harmful effects the screening measures themselves might have on the openness of the green belt.

The council had limited its assessment of the effects of the proposed development on the openness of the green belt solely to spatial impact. Lord Justice Lindblom was critical of this approach and considered that visual openness was “quite obviously” relevant to its effect on the openness of the green belt. Had the council considered visual openness, the decision “might very well have been different”.

The conclusion to be drawn from this case is that extensions of existing quarries in the green belt are likely to need to consider their effects in both spatial and visual terms, and that simply screening minerals development may make it harder to meet NPPF policy.

Setting of listed buildings

A recent appeal relating to land near the Grade I-listed Kedleston Hall has brought the issue of what constitutes the “setting” of a listed building before the courts.

The proposed development was more than a mile from the listed building and could not be seen from it. Objectors at the appeal inquiry gave evidence that “the appeal site was part of the setting of the hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use”.

The inspector concluded that the appeal site did not form part of the setting of Kedleston Hall. The objectors challenged the decision, claiming that inspector had disregarded the historic and social connections. That challenge was upheld by Justice Lang in the high court, who found the inspector had “adopted a narrow interpretation of setting”.

Both the developer and the secretary of state for communities and local government appealed that decision, with Lord Justice Lindblom confirming that such matters were relevant to the setting of a listed building. But in this case, the inspector had considered them and “his conclusions were well within the limits of lawful planning judgment”.

Therefore developers will need to consider more than just the visual element of a setting, but the decision on what constitutes the extent of the setting will always be a matter of judgment for the decision maker.

This is article is from BAA Associate from October print edition of Mineral Planning.

Chris Tofts is head of planning and part of the mining and minerals team at Stephens Scown.  If you would like to get in touch with Chris on this topic please email MiningandMinerals@stephens-scown.co.uk or call 01872 265100.