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26th January 2016

High Court rules that gardens outside “built up areas” are Brownfield land

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A recent High Court decision has held that the definition of “previously developed land” (also known as Brownfield land) within the National Planning Policy Framework (NPPF) excludes private residential gardens in “built-up” areas only, but not private residential gardens elsewhere.

One of the core planning principles within the NPPF is to encourage the development of previously developed land which is not of high environmental value. The NPPF’s definition of previously developed land is “land which is or was occupied by a permanent structure, including the curtilage of developed land.” The NPPF goes on to list certain land which is excluded from the definition of previously developed land, including “land in built-up areas, such as private residential gardens, parks, recreation grounds and allotments”.

The facts of the case were that planning permission was sought by the occupiers of a mobile home within the garden of a farmhouse near open countryside in the green belt, to change the use of the garden to a private traveller site. The local authority refused planning permission, but there was a successful appeal to the planning inspector who determined that the site was previously developed land for the purposes of the NPPF and was not excluded from that definition as a private residential garden in a built up area. The local authority challenged this decision.

The judge agreed with the planning inspector, and said that it was impossible to read the NPPF definition as excluding private residential gardens that were not in built up areas. He went on to say that he felt that there was a rational explanation for this, in that “garden-grabbing” is a particular phenomenon of built up areas. Therefore, gardens outside such areas require less protection from development.

The development of larger gardens can be an effective way of increasing residential properties in areas where there is a strong demand for housing, without encroaching on other undeveloped public space or expanding into the green belt. This decision should make it easier to obtain planning permission for this type of development outside built up areas, particularly if the proposal to amend the NPPF to include a “presumption in favour of Brownfield land” is adopted. However, there is likely to be uncertainty as to the meaning of “built-up area”, giving rise to ambiguity as to whether a garden is Greenfield or Brownfield land. Whilst on the facts of this case it was obvious that the garden was not in a built-up area, the position may not always be so clear cut.

For more information please visit our Planning information page, or contact Gemma Dudley on 01223 532747 or click here to email Gemma.