UK: “Victory” for Valley Grown Nurseries in Planning battle against the Lee Valley Park

The Court of Appeal has given its long awaited judgment in the case of the Lee Valley Regional Park Authority (LVRPA) v Epping Forest DC and Valley Grown Nurseries Ltd [2016] EWCA Civ 404. The case involved a challenge to the grant of planning permission for a 92,000 square metre glasshouse extension on a site lying within both the Green Belt and the Lee Valley Regional Park, and also less than a mile from a Special Protection Area and Ramsar site.

The appeal raised wide ranging issues concerning the interplay between the statutory presumption in favour of the development plan and the NPPF, the requirements of the Habitats Directive, and the meaning and effect of NPPF policy for the construction of agricultural buildings in the Green Belt. Peter Village QC and Ned Helme, acting for Valley Grown Nurseries, successfully defended the appeal on all grounds.

The principal issue in the case concerned the consequences of a proposal being appropriate (or “not inappropriate”) development in the Green Belt. The glasshouse was appropriate, since it was a “building for agriculture” under the first bullet of paragraph 89 of the NPPF. The LVRPA contended that an appropriate proposal caused no “definitional harm” but that it could cause “actual harm” to the openness of the Green Belt, or to the purposes of including land in it, and that any such actual harm should be given “substantial weight” under paragraph 88 of the NPPF.

Giving the judgment of the Court, Lord Justice Lindblom rejected the LVRPA’s argument, finding that it would mark an “unheralded change” from previous Green Belt policy under PPG2 and that it would negate the purpose of categorising agricultural buildings as appropriate. Lord Justice Lindblom agreed with Mr Justice Dove (who had heard the case at first instance) that appropriate means “appropriate to the Green Belt” such that an appropriate agricultural building is regarded by the NPPF as not inimical to openness or Green Belt purposes.

That was the real significance of a development being appropriate in the Green Belt, and the reason why it does not have to be justified by “very special circumstances”. That was not to say that proposals for the erection of agricultural buildings in the Green Belt will escape other policies in the NPPF, and in the development plan, including policies directed to the visual effects of development and the protection of countryside or the character of the landscape. However, the Council’s approach to such matters in this case was unimpeachable and the grant of permission was therefore lawful.

Source: Lea Valley Growers Association www.lvga.co.uk