“Garden grabbing” appeal dismissed

Dartford Borough Council has failed on appeal in a challenge to a decision it says could open the door to “garden grabbing” in the countryside. The Court of Appeal confirmed that an exception to land being treated as brownfield – which applies to gardens, allotments and other green land in built-up areas – does not also apply to residential gardens in the countryside. The case centred on a decision made by a government planning inspector granting planning permission for change of use of land in Hawley, Kent, to a private gypsy and traveller caravan site. In the decision under challenge, the inspector took the view that gardens only fall within the exception in the National Planning Policy Framework (NPPF) in built-up areas, with gardens in the curtilage of buildings in the countryside still treated as previously developed, or brownfield, land. The council argued that this stance could lead to a return of “garden grabbing”, intensifying development in the countryside. However the High Court dismissed its challenge last January, and now the Court of Appeal has agreed. Lord Justice Lewison said that the exception in the glossary definition of brownfield land in the NPPF refers to “land in built-up areas such as private residential gardens, parks, recreation grounds and allotments”. He said that the “critical words” were “land in built-up areas”, adding: “As a matter of ordinary English I cannot see that any other meaning can be given to this sentence. ‘Land in built-up areas’ cannot mean land not in built-up areas.” Ashley Bowes, a barrister at Cornerstone Barristers who acted for Dartford Borough Council instructed by Sharpe Pritchard LLP, said: “The practical result is that private residential gardens outside the built-up area are brownfield and those within the built-up area are greenfield. “On a broader level the judgment is a firm restatement of a textual, rather than a purposive, interpretation of the NPPF, especially where the wording within the NPPF is clear, even if that might not reflect ministerial statements to the House of Commons or chief planning officer letters.” To send feedback, e-mail jess.harrold@egi.co.uk or tweet @jessharrold or @estatesgazette