Town and country planning – National Planning Policy Framework (NPPF) – Green belt – Appellant council adopting local plan following approval by planning inspector – Plan altering green belt boundaries so as to include respondent’s land – Whether inspector properly having regard to requirements of NPPF – Whether applying correct test for revising green belt boundaries – Appeal dismissed – Cross-appeal allowed in part
In December 2013, the appellant council adopted a local plan for Solihull which they had prepared and which had been approved, with modifications, by a planning inspector appointed by the secretary of state. The plan altered the boundaries of the green belt to include two sites that the respondents sought to develop for housing; as a result, any application for planning permission for such development was likely to be refused.
The respondents challenged the lawfulness of the local plan in proceedings brought under section 113(3) of the Planning and Compulsory Purchase Act 2004. Allowing the claim, the judge held that para of the National Planning Policy Framework (NPPF) had effected a radical policy change in respect of housing provision. He held that the inspector’s approach had been unlawful since he had failed to consider whether the local plan met the full objectively assessed housing needs for the area, which was now the required aim 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. The judge also held that the inspector had failed to apply the stringent test of exceptional circumstances that applied to the revision of a green belt boundary. He ordered that the defective parts of the local plan should be treated as not adopted and be remitted to the planning inspectorate for re-examination by a different inspector: see [2014] EWHC 1283 (Admin); [2014] PLSCS 135.
The appellant appealed against the decision on the substantive issues. The respondents cross-appealed against the judge’s order as to the appropriate relief: they contended that the local plan should not merely be remitted for reconsideration by a different inspector but should be quashed altogether.
Held: The appeal was dismissed; the cross-appeal was allowed in part.
(1) Para 47 of the NPPF effected a radical policy change in respect of housing provision when compared with the previous policy articulated in PPS3. As the judge had correctly held, para 47 now required a two-step approach involving, first, an objective assessment of full housing needs, and, second, an assessment as to whether other policies dictated or justified constraint. The exercise of making of an objective assessment of needs (OAN) was prior to, and separate from, the application to that assessment of the impact of other relevant NPPF policies. Accordingly, while the previous policy involved striking a balance between housing needs and other factors, para 47 now required the OAN to be made first, and to be given effect in the local plan save only to the extent that that would be inconsistent with other NPPF policies. That two-step approach was mandatory and could not be described as barren, technical or mechanistic. It meant that housing need would be clearly and cleanly ascertained. The numbers mattered since, the larger the need, the more pressure there might be to impinge on other inconsistent policies: Hunston Properties Ltd v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610; [2014] EGILR 7 applied.
The process by which the inspector had come to recommend the adoption of the local plan did not meet the requirements of the NPPF. Neither the appellants in proposing the local plan, nor the inspector in recommending its adoption, had undertaken an OAN as a separate and prior exercise to the consideration of the impact of other policies. The inspector had not indicated a figure for OAN and had not undertaken the mandatory two-step approach required by para 47 of the NPPF. His recommendation was therefore flawed by error of law.
(2) The inspector had also erred in his approach to the test for the revision of green belt boundaries. The current policy under para 83 of the NPPF, like its predecessor in PPG2, required exceptional circumstances in order to justify a revision of the existing boundary. The fact that a particular site was not suitable for housing and that its exclusion from the green belt would not conduce to sustainable development, as the inspector had effectively found, could not without more be said to constitute an exceptional circumstance justifying an alteration of the green belt by allocating the site to it. The inspector had not based his decision on a relevant green belt reason. Whether development would be permitted on the respondents’ sites, were they to remain outside the green belt, would depend on the appellants’ assessment of the merits of any planning application put forward: Copas v Windsor and Maidenhead Royal London Borough Council [2001] EWCA Civ 180; [2002] P&CR 16; [2001] PLSCS 37 considered.
(3) The legal errors in the local plan had first arisen in the appellant’s preparation of the plan, before the inspector examined it. The appellants had failed to proceed on a correct understanding of para 47 of the NPPF and had not undertaken or proposed the two-step approach that the NPPF required. In those circumstances, the legal flaws in the plan could not be cured simply by a further examination before a different inspector; the appellants needed to think again. However, it was not necessary to quash the plan. The proper course was to remit those parts that were infected by legal error to the appellants, for them to reconsider in light of the court’s judgment and to cure the illegalities in their earlier preparation.
Christopher Katkowski QC and Rowena Meager (instructed by the legal department of Solihull Metropolitan Borough Council) appeared for the appellants; Christopher Lockhart-Mummery QC and Zack Simons (instructed by Pinsent Masons LLP) appeared for the respondents.
Sally Dobson, barrister
