If you have a garden and live in a rural location then your garden is now considered “previously developed land” according to a Court of Appeal judge in Dartford Borough Council v The Secretary of State for Communities and Local Government & Ors [2017] EWCA Civ 141 (14 March 2017).
Why this matters?
The development of previously developed land is actively encouraged in national planning guidance. The National Planning Policy Framework (NPPF) notes: “Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed (brownfield land), provided that it is not of high environmental value”
What is previously developed land?
The NPPF defines previously developed land as:
“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.”
What has happened?
In Dartford Borough Council v The Secretary of State for Communities and Local Government & Ors [2017] EWCA Civ 141 (14 March 2017) a Court of Appeal judge has succinctly considered the words in bold above. The case involved development in a private residential garden in rural green belt.
The Council argued that all private residential gardens are excluded from the definition of previously developed land, whether or not they are in a built-up area. Any other interpretation, so it is said, would give rise to conflicting policies within the NPPF.
The judge strongly disagreed: “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”.
He held that the development was in the curtilage of land that was occupied by a permanent structure (a residential garden) and as the area was rural it should be classed as previously developed land.
The appeal by the Council was dismissed.
What does this mean in practice?
If you own a garden that is not in a built-up area then it is likely to now be considered previously developed land. This could give you scope to develop.
It’s important to note that this does not give you a carte blanche. You will still need to comply with other planning policies, however this ruling could really help your chances of securing permission.
But don’t hang about. We are quite sure that the government will issue updated guidance in the coming months to close this unintended definition.
You can read the full case here: Dartford Borough Council v The Secretary of State for Communities and Local Government & Ors [2017] EWCA Civ 141 (14 March 2017)
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