Development plan – Core strategy – Planning judgment – Claimant parish council applying to quash aligned core strategies adopted by defendants as part of development plan – Whether defendants considering whether housing numbers should be reduced to prevent release of green belt land – Whether defendants failing to apply national policy correctly – Whether defendants’ sustainability appraisal failing to satisfy statutory requirements – Application dismissed
The claimant parish council applied under section 113 of the Planning and Compulsory Purchase Act 2004 to quash, in part, the Greater Nottingham – Broxtowe Borough, Gedling Borough and Nottingham City – Aligned Core Strategies (ACS) adopted by the defendant authorities as part of the development plan for each of the three defendants’ areas. The second and third defendants were contiguous with the outer boundary of the city of Nottingham and substantially comprised green belt. The claimant was a parish council within Gedling Borough. The two interested parties owned land in Toton, within Broxtowe Borough which was within the main built-up area of Nottingham.
The ACS was subject to independent review by a planning inspector who, following examination hearings, published her report approving the ACS with modifications. The claimant’s advisers identified what were considered to be legal deficiencies in the report but, notwithstanding its contentions, the ACS was adopted by the three defendants.
The claimant contended that the report had failed to: (i) consider whether housing numbers should be reduced to prevent release of Green Belt land; (ii) apply national policy in considering the release of Green Belt land, violating paragraph 47 of the National Planning Policy Framework (NPPF) and a proper application of the two-stage test stipulated by the Court of Appeal in Hunston Properties Ltd v St Albans City and District Council [2013] EWCA Civ 1610; [2014] EGILR 7; and (iii) carry out a sustainability in a manner which satisfied the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633).
Held: The application was dismissed.
(1) The first stage in the two-stage approach to the application of paragraph 47 of the NPPF was to reach a conclusion as to the full objectively assessed needs for market and affordable housing. That was a purely quantitative exercise. The second stage involved an exercise of planning judgment as to whether the policy constraints in the NPPF carried the consequence that the objectively assessed needs should not be met. It would be illogical and circular to conclude that the existence of an objectively assessed need could, without more, be sufficient to amount to “exceptional circumstances” within the meaning of paragraph 83 of the NPPF. In a case such as the present, having objectively assessed need, the planning judgments involved in the ascertainment of exceptional circumstances in the context of both national policy and the positive obligation located in section 39(2) of the Planning and Compulsory Purchase Act 2004 (to contribute to the achievement of sustainable development) should, at least ideally, identify and then grapple with: (i) the acuteness/intensity of the objectively assessed need (matters of degree might be important); (ii) the inherent constraints on supply/availability of land prima facie suitable for sustainable development; (iii) the consequent difficulties in achieving sustainable development without impinging on the green belt; (iv) the nature and extent of the harm to the particular green belt (or those parts of it which would be lost if the boundaries were reviewed); and (v) the extent to which the consequent impacts on the purposes of the green belt might be ameliorated or reduced to the lowest reasonably practicable extent: Hunston Properties Ltd v St Albans City and District Council [2013] EWCA Civ 1610; [2014] EGILR 7 applied.
(2) The core conclusion that exceptional circumstances existed could not be successfully impugned. The key point was that the inspector had been able to reach an evidence-based conclusion as to the presence of exceptional circumstances at the first stage and that she had not been, in some way, adjourning the matter over for substantive consideration at the second stage. Further, in modifying the ACS so as to achieve a sequential approach to site release, the inspector had been achieving an overall state of affairs which should secure an effective policy consistent with national policy. Not merely was that a legally tenable approach, it was both sensible and appropriate in the circumstances of the present case. The issue for the inspector had been whether the release of some green belt land was justified, having regard to the objectively assessed need. If it was not justified, the green belt boundaries would have remained as before. It had not been incumbent on the inspector to “salami slice” the objectively assessed need further and to consider some hypothetically lower number. Such an obligation would only have arisen if meeting the whole of the objectively assessed need had not been justified because exceptional circumstances did not existed to amount to that justification.
(3) The 2004 Regulations provided the framework for development consent decisions to be subject to an assessment of their environmental effects, in line with the purposive interpretation mandated by the Strategic Environmental Assessment Directive 2001/42/EC. In the present case, the sustainability assessment had expressly considered the consequences of not reviewing the boundaries to the green belt, and the consequent advantages and disadvantages. Ultimately, it was for the defendants, in the exercise of their collective planning judgment to identify which reasonable alternatives needed to be considered and the approach taken could not be impugned for errors of law: Save Historic Newmarket v Forest Heath District Council [2011] EWHC 606 (Admin) 606; [2011] PLSCS 88 and Heard v Broadland District Council [2012] EWHC 344 (Admin); [2012] PLSCS 51 applied.
Richard Turney (instructed by Direct Public Access) appeared for the claimant; Morag Ellis QC and Annabel Graham-Paul (instructed by Nottingham, Broxtowe and Gedling Borough Councils) appeared for the defendants; Richard Honey (instructed by Walker Morris, of Leeds) appeared for the interested parties.
Eileen O’Grady, barrister
