High Court decision indicates residential gardens can be brownfield land

Private residential gardens have been excluded from the definition of ‘previously developed land’, also known as brownfield land, since 2010. At the time there was a furore over ‘garden grabbing’ and so Greg Clark, Decentralisation Minister at the time, decreed that gardens should not be classed as brownfield. This classification continued in to the glossary of the National Planning Policy Framework (NPPF).

A recent High Court decision in the case of Dartford Borough Council v Secretary of State for Communities and Local Government has provided some helpful clarification on the the definition.

The case:

Key to this particular case was whether the definition of brownfield land as presented in the NPPF excluded all residential gardens.

The High Court held that the wording in the NPPF was of particular importance.  It defines exemptions to brownfield land as “land in built-up areas such as: private residential gardens.”

As such the High Court ruled that under current policy, it would reasonably follow that residential gardens outside “built-up areas” are not party to the exemption.  These could therefore be defined, not as greenfield, but as “previously developed” or “brownfield” land.

The High Court justified the distinction by explaining that undeveloped urban land requires greater protection as the nature of its location indicates it as at more of a premium.

The impact of this case has yet to be seen but it is worth remembering that the NPPF clearly states brownfield land should be prioritised for development.

Next steps:

It will be interesting to see how local councils respond to this as inevitably they will need to address their own definitions of “built-up areas” in light of this case.

Cornerstone Barristers who acted for Dartford BC, also raised the pertinent point on whether anything further will be made of the Ministerial Statement in relation to ‘garden grabbing’ which accompanied the changes to national planning policy in 2010.

We wrote about the changes to PPS3 “Housing” and the impact of the suggested intention to remove all residential gardens from the definition of brownfield land, back in 2010.  And yet, as this High Court ruling has identified, closer analysis of the wording in the NPPF and the earlier PPS3 indicate that as far as private residential gardens are concerned, if they aren’t in a “built-up area”, they have the potential to benefit from a brownfield designation.

Obviously other planning restrictions may well still apply and each site will need to be looked at on a case by case basis, but we will be watching to see the consequences of this ruling as they play out, especially in light of the consultation currently under way on the NPPF which runs until the 22nd February.

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