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Rural gardens are brownfield, but not urban

General - Country Garden

The High Court has further muddied the waters over the status of residential gardens as brownfield or greenfield by ruling only those in built-up areas are greenfield - while rural ones are brownfield.

It rejected a challenge to communities secretary Greg Clark by Dartford Borough Council which sought to quash a planning appeal decision which judged that only gardens in built-up areas are greenfield in English planning guidance.

The whole mess dates from 2010 when communities secretary Eric Pickles responded to politically motivated pre-election press hysteria about so-called "garden grabbing" by declaring that gardens would, in future, count as greenfield.

The planning minister at the time was Mr Clark.

But exclusions in the 2012 National Planning Policy Framework definition of "previously developed land" include "land in built-up areas such as private residential gardens". Deputy Judge Charles George ruled that this wording is significant.

The judgement contends the rational explanation for the distinction must be that undeveloped land in urban areas is under more development pressure and so requires greater protection.

But neither ministerial statements or letters to chief planners in 2010 mentioned such a concern, although both the PPS3 amendment and NPPF included the "built-up areas" distinction.

The judgement leaves a ludicrous situation where rural gardens are ruled as brownfield and so benefit from the NPPF's very weak encouragement of brownfield development while urban gardens are subject to its equally weak proscriptions of greenfield development.

"The decision presents councils and others with an interest in the development of land with the obvious quandary as to how to identify 'built-up areas'," said Ashley Bowes of Cornerstone Barristers which acted for Dartford.

"In this case, the land was within the countryside to which the Council’s countryside development plan policies applied. There may be very many less clear-cut cases however."

The Government must now decide whether to propose a further amendment to the NPPF.

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