High Court Holds That Some Residential Gardens Are Brownfield Land

Whilst researching a small residential development I am working on where there is a very favourable PDL policy, I came across a recent High Court decision of interest.

In Dartford Borough Council v Secretary of State for Communities & Local Government (CO/4129/2015), the principal issue before the Court was whether the definition of “previously developed land” (commonly known as “brownfield land”) within the NPPF excluded all private residential gardens, or just those “in built up areas”.

The Deputy Judge held that the wording of the exemption to previously developed land, within the NPPF was significant. It reads “land in built-up areas such as: private residential gardens”. As such, the Deputy Judge found that only residential gardens within the “built-up area” were exempt from the definition of previously developed land whereas, residential gardens outside “built up areas” were “brownfield”.

The Court held there to be a rational explanation for the distinction, namely that undeveloped land in the urban area was at more of a premium and thus required greater protection.

The decision is significant. It holds that residential garden land, outside “built-up areas” is “brownfield” land not, as had widely been understood, “greenfield” land. That finding has consequences in terms of its priority for development. Paragraph 111 NPPF provides that brownfield land is where development ought to be prioritised.

The decision presents the obvious quandary as to how to identify “built-up areas”. 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, such as the one that I am working on – immediately adjacent to defined settlement limits, so in open countryside but with residential development to its west and east.

I expect a clarification statement to follow quite shortly!

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