The Court of Appeal decision of Dartford Borough Council v Secretary of State for Communities And Local Government & Anor [2017] EWCA Civ 141 has found that the term ‘previously developed land’ as defined by the glossary forming part of the National Planning Policy Framework (NPPF) does include private residential gardens in an area that is not built-up. Such definition specifically excludes private residential gardens in a built-up area.
The case concerned a planning permission allowed on appeal for a change of use of land to a private gypsy and traveller caravan site within the residential curtilage of a property known as Shirehall Farm. Shirehall Farm is within the Green Belt, and is not a built up area.
The definition of ‘previously developed land’ in the NPPF is:
"Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time."
The term is important to the general Green Belt Policy at paragraph 87 of the NPPF (i.e. the very exceptional circumstances test) noting the qualifying exclusions at paragraph 89 include:
"limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development."
The Court of Appeal found that there was no ambiguity in the wording of the definition of ‘previously developed land’ which clearly did not exclude from its definition private residential gardens in non-built-up areas. Thus any conflicting minister statements are irrelevant. They further found that the definition was not in conflict with the general Green Belt Policy or any other relevant policies in the NPPF.
Lesson: a private residential garden which is not in a built-up area will constitute previously developed land (i.e. Brownfield land) within the NPPF. Thus, development of such land within the Green Belt will be excluded from the general Green Belt Policy provided such development would not have a greater impact on the openness of Green Belt than the existing development.
