PLANNING COURT
Local plan – Green belt – Exceptional circumstances –Defendant local authority adopting local plan including claimants’ land in green belt – Inspector approving modified plan – Claimants applying for judicial review – Whether inspector having regard to national planning policy – Whether defendants fulfilling duty to co-operate with other local authorities – Whether inspector applying correct test for revising green belt boundaries – Application granted
The claimants had interests in two sites on Solihull which they wished to develop with housing. In December 2013, the defendant local planning authority adopted the Solihull Local Plan which placed both sites within the green belt. Before adoption, in accordance with required procedure, an inspector appointed by the secretary of state to conduct an examination in public published a report which concluded that the local plan could be approved with modifications Thereafter any application for planning permission for housing was likely to be refused on the ground that the proposed development would be inappropriate in the green belt and there were no very special circumstances that warranted such development.
The claimants applied under section 113(3) of the Planning and Compulsory Purchase Act 2004 for an order that the defendants had acted unlawfully in adopting the local plan with its allocation of their sites to the green belt. The claimants contended that the defendants had adopted a plan: (i) that was not supported by a figure for objectively assessed housing need, contrary to the requirements to have regard to the national planning policy framework (NPPF) and adopt a sound plan; (ii) without fulfilling their duty to cooperate with other local planning authorities; and (iii) without regard to the proper test for revising green belt boundaries set out in the NPPF which provided that green belt boundaries should only be altered in exceptional circumstances.
Held: The application was granted.
(1) A local authority was required to have regard to national policy and guidance when preparing development plan documents. The only extant national policy guidance and advice relevant to the present application was in the NPPF, at the heart of which was sustainable development which was not defined specifically but was development which met the needs of the present without compromising the ability of future generations to meet their own needs. Each development plan document was subject to an examination in public by an independent inspector appointed by the secretary of state, who determined whether the plan complied with various procedural requirements, whether the plan was sound and whether it was reasonable to conclude that the local planning authority had complied with any duty to co-operate: sections 19, 20 and 23 of the 2004 Act.
In the present case, the inspector had erred in law with regard to his approach to the housing provision by failing to grapple with the issue of full objectively assessed housing need, with which the NPPF required him to deal. Whether a plan was sound was essentially a matter of planning judgment for the inspector but it had to address and seek to meet full, objectively assessed housing needs for market and affordable housing in the housing market area, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole.
Looking at the report as a whole, the inspector appeared to have confused policy off “housing needs” with policy on housing requirement targets, bearing in mind the need to avoid exegetical analysis of inspector’s reports, and the requirement to consider such reports fairly and as a whole. The balancing exercise required by paragraph 47 of the NPPF could not be performed without being informed by the actual full housing need. The inspector’s approach to the policy requirements of the NPPF in relation to housing provision was neither correct nor lawful. He had failed to comply with the relevant procedural requirements and the modified local plan which he had endorsed was not sound because it was not based on a strategy which sought to meet objectively assessed development requirements nor was it consistent with the NPPF: Barratt Developments Plc v Wakefield Metropolitan Borough Council [2010] EWCA Civ 897; [2010] PLSCS 216 and City and District Council of St Albans v Hunston Properties Ltd [2013] EWCA Civ 1610; [2014] EGLR 7 considered; South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin); [2014] PLSCS 12 distinguished.
(2) As the Inspector had not applied himself to the prior questions of whether there was any shortfall between the need for housing and the provision made and, if there was, the amount of that shortfall, it was impossible to say whether or not there was any breach of the duty to cooperate.
(3) Exceptional circumstances were required for any revision of the boundary, whether the proposal was to extend or diminish the green belt. Once a green belt had been established and approved, it required more than general planning concepts to justify an alteration. The requisite necessity, where the revision proposed was to increase the green belt, could not be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the green belt was thereafter clearly and permanently falsified by a later event. The fact that, after the definition of the green belt boundary, the local authority or an inspector might form a different view on where the boundary should lie, however cogent that view on planning grounds, could not of itself constitute an exceptional circumstance which necessitated and therefore justified a change to include the land in the green belt.
In the present case, the inspector had not adopted the correct approach to the proposed revision of the green belt boundary to include the sites which had previously been unallocated land. He had performed an exercise of simply balancing the various current policy factors and, using his planning judgment, concluding that it was unlikely that either of the two sites would, under current policies, be found suitable for development. That might now be so but that fell far short of the stringent test for exceptional circumstances that any revision of the green belt boundary had to satisfy: COPAS v Royal Borough of Windsor and Maidenhead [2001] EWCA Civ 180; [2010] PLSCS 37 applied; Carpets of Worth Ltd v Wyre Forest District Council [1991] 2 PLR 84, Laing Homes Ltd v Avon County Council (1993) 67 P & CR 34 and R (on the application of Hague) v Warwick District Council [2008] EWHC 3252 (Admin); [2008] PLSCS 351 considered.
Christopher Lockhart-Mummery QC and Zack Simons (instructed by Pinsent Masons LLP) appeared for the claimants; Ian Dove QC and Nadia Sharif (instructed by Solihull Metropolitan Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
