The High Court has clarified the approach to assessing whether a site comprises previously developed land in R (on the application of Ribble Valley Borough Council) v (1) Secretary of State for Housing, Communities and Local Government (2) Majid Hussain [2025] EWHC 2363 (Admin).
Shemuel Sheikh successfully acted for the Claimant, Ribble Valley Borough Council, in a statutory review claim under the Town and Country Planning Act 1990 securing the quashing of a Planning Inspector’s decision on appeal to grant planning permission for a neo-classical villa in the Green Belt. The Court found that the Inspector’s conclusion that the site was previously developed land was unlawful. As such, the assessment of the scheme as not inappropriate development in the Green Belt under paragraph 154 of the National Planning Policy Framework was flawed.
It was held by Karen Ridge, sitting as Deputy High Court Judge, applying R (on the application of Lee Valley Regional Park Authority) v Broxbourne BC [2015] EWHC 185 (Admin), that where different parts of a site are different in nature, the National Planning Policy Framework definition of previously developed land requires an exercise assessing whether the result is that the whole site should be considered previously developed land, part of it, or none of it. That is important because development proposed on part of a Green Belt site that is not previously developed land, and which as a result is considered inappropriate development, requires the stricter policy test of demonstrating very special circumstances.
A number of other grounds were also successful, including that the Inspector had erroneously taken into account the equestrian use of the site, as opposed to solely the development, when assessing previously developed land. There had also been a failure to provide adequate reasons. Ultimately, in light of the failure to carry out a Broxbourne assessment, the Inspector’s conclusion that the entire site was previously developed land was also held to be irrational (i.e. Wednesbury unreasonable).
In addition, the Court addressed the procedural issue as to whether the Claimant’s challenge involved a new argument not raised at the appeal hearing before the Inspector. It was held, considering the evidence, that the Claimant’s position was not inconsistent with that at the appeal hearing, as alleged by the Second Defendant. It was also found, applying R (Newsmith Stainless Limited) v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1125, that even if part of the claim was not previously argued by the Claimant, it was nevertheless appropriate to allow the claim to proceed. The judgment therefore also provides helpful guidance on arguments which are alleged to be new as part of a High Court challenge.
The key paragraphs of the judgment, in respect of the application of Broxbourne, are as follows:
“64. Mr Sheikh for the Claimant contends that the Inspector failed to apply the correct approach in relation to his assessment of PDL. Mr Sheikh says that the Inspector should have considered the extent to which parts of the Site comprise PDL and as a result whether the Site as a whole was PDL, or alternatively whether only parts of the Site were PDL. Mr Sheikh contends that this error is apparent when one considers how the Inspector describes the visual effects of the Site, referring to the piecemeal spread of development across the site at DL47.
“47. In terms of wider visual effects, the proposal would, through the landscaping and planting proposed screen the Woodford Park Farm development from Further Lane and the site, and would remove the equestrian development, which appears as a somewhat piecemeal spread of development across the site. Whilst I accept that the existing equestrian development is largely at the opposite end of the site to the proposal, both it and the proposal are a similar distance from the boundary of the RPG.”
65. On behalf of the Second Defendant, Mr Strachan contends that the glossary definition of PDL is open textured; it requires the decision-maker to exercise a planning judgment and to make findings. He says that the definition of PDL is not confined to building footprints and their curtilages, but it also includes land covered by any permanent structure and associated fixed surface infrastructure. Whilst I note that Mr Masseralla-Gill’s notes record that both parties accepted that the Site was in equestrian use, that did not equate to an acceptance that the Site was PDL in whole or in part.
66. Both parties accept that the Broxbourne case establishes that the definition of PDL in the NPPF has flexibility in that a finding that land is PDL may not require every part of the application site to be found to be PDL. Mr Justice Ousley also said that the presence of some PDL within an application site does not make the whole site PDL either. The point is that some sites will be comprised of PDL to such an extent that the inclusion of some parcel which is not PDL does not alter a conclusion that the site is PDL without any detailed analysis being needed. At the other end of the scale there will be some sites in which a small corner contains PDL, but the remainder of the site is not PDL. Again, such a site will not require a more detailed assessment as to its various parcels before a conclusion can be reached that it is not PDL.
67. There will however be other sites which contain a mixture of PDL and land which does not fall within the PDL glossary definition. In the Broxbourne case, this was the situation; whilst there was some PDL, it was not so large a proportion of the whole site as to make the distinction (between PDL and non-PDL land) one which could reasonably be ignored.
68. In this case, at DL15 the Inspector has made a finding that the Site is PDL. The question which arises is: was this a site in which the PDL was so large a proportion of the whole site such that the Inspector need not have applied his mind to the relative proportions of PDL and non-PDL land. In addition to the observations at DL47 quoted above, the Inspector’s descriptions of the Site are found in the following paragraphs of the DL:
“9. The site is currently in equestrian use, with associated buildings and development across the whole site but somewhat concentrated at the western end.”
‘36…the appeal site is in equestrian use, with related development and equipment across the site. Parts of it are overgrown and unmaintained, and there is a general spread of equestrian-paraphernalia”.
69. There is a recognition at DL47 that there is a piecemeal spread of development and that the existing equestrian development is “largely at the opposite end of the site to the proposal”. That chimes with the findings at DL9 that it is concentrated at the western end. The description at DL36 is more vague, there is no differentiation between development and equipment or to the distribution of each of these elements.
70. The Officer’s Report describes the Site as 5.68 hectares of land used for horse grazing with two existing buildings used for equestrian purposes on it. The red line plan of the Site depicts buildings in the north-eastern corner of the Site and four parcels of land which are paddock areas in the middle of the Site. The mixed nature of the Site provides a clear indication that some assessment is needed as to the extent of development and its curtilage and any other associated fixed surface infrastructure comprising PDL on the Site.
71. When one looks at the descriptions of the Site in the appeal documentation and the Inspector’s own assessment within the DL, it appears that the equestrian development was concentrated within the part of the Site at the opposite end to the proposal and that development is spread piecemeal across the site. The Inspector’s own descriptions based on his Site inspections confirm this.
72. The Inspector appears to have undertaken an assessment of the Site and concluded that the whole Site was PDL. His bare conclusion that the Site was PDL gives no indication that he has taken into account the different elements and parcels of the Site and their differing characteristics as against the glossary definition. The Inspector has however acknowledged the piecemeal spread of development, and the differing characteristics of different parts of the Site. Given that description and the particular characteristics of this Site, it is clear that he ought to have properly gone on to explain how he came to a final conclusion that the whole site was PDL. A more detailed analysis as to the constituent parts of PDL was needed to support a lawful conclusion that the whole Site was PDL.
73. Given the characteristics of this particular Site, it was necessary to have explained how the constituent elements of the Site contributed to such a conclusion. The Inspector has not undertaken the Broxbourne exercise which this Site requires due to the piecemeal spread of development and the concentration of equestrian development at one end of the Site. These factors called for some analysis as to the relative proportions of PDL. His analysis of the PDL question was therefore flawed.”
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