Planning permission – Green belt – Residential development – Planning permission refused on ground that claimant developer unable to demonstrate housing shortfall amounting to very special circumstances outweighing harm to green belt from proposed development – That decision reached by reference to housing target in revoked regional spatial strategy which took into account constraints on development – Whether planning inspector erring in using RSS figure – Whether failing to reach decision by reference to full objectively-assessed housing needs – Claim allowed
The claimant appealed to the first defendant against the refusal of the second defendant council to grant outline planning permission for a development of 116 dwellings, a 72-bed care home, road access, two tennis courts and open space on a 5ha site in St Albans. The development site comprised open agricultural land located almost entirely within the metropolitan green belt; one of the grounds of refusal related to the inappropriateness of the development in the green belt.
At an inquiry before a planning inspector, the claimant relied on evidence of a projected annual housing need for 688 households in St Albans over the five-year period from 2011 to 2018, which, when compared with the total number of dwellings that could be accommodated on sites identified by the second defendants as deliverable, left a housing shortfall of 1417 dwellings; the claimant submitted that the shortfall amounted to very special circumstances sufficient to justify its development in the green belt.
Rejecting that submission, the inspector found that the appropriate housing target was 360 dwellings pa. That figure was the minimum annual average development figure for St Albans as set out in the former regional spatial strategy (RSS) for the area, which had recognised that the minimum figures took into account various constraints on development and might not be sufficient to meet housing need.
Although the RSS had been revoked in January 2013 and replaced by the regime of the national planning policy framework (NPPF), which required local authorities to identify a five-year supply of deliverable sites sufficient to meet the full, objectively assessed housing needs for their area, the second defendants had not yet produced such a plan.
The inspector considered that the resulting “policy vacuum” was most appropriately filled by using the figures from the revoked RSS. In her decision of February 2013, she concluded that there was no unmet housing need and no very special circumstances to justify the claimant’s development; she dismissed the appeal accordingly.
The claimant brought a claim under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. It contended that, in adopting the housing figure from the RSS, the inspector had misconstrued and misapplied the relevant parts of the NPPF.
Held: The claim was allowed.
Where there was no up-to-date development plan against which the claimant’s planning application could be assessed, the NPPF presumption in favour of sustainable development required that planning permission be granted unless the policy in the NPPF concerning the green belt indicated that development should be restricted: see para 14 of the NPPF.
The green belt policy was not an outright prohibition on development in the green belt but was instead a prohibition on inappropriate development in the absence of very special circumstances. Where it was common ground that the claimant’s development was inappropriate development in the green belt, which should not be approved unless very special circumstances existed that clearly outweighed the substantial weight to be given to the green belt harm, it was necessary to carry out at least two different exercises: first, a finding had to be made concerning the degree to which, if at all, the claimant had established the existence of the matters on which it relied as very special circumstances; second, an assessment had to be made as to whether the matters that were established clearly outweighed the harm that the proposals would cause to the green belt.
The inspector had failed properly to carry out the first of those exercises. Where it was contended that very special circumstances existed because of a shortfall caused by the difference between the full, objectively-assessed needs for market and affordable housing and that which could be provided from the supply of specific deliverable sites identified by the relevant planning authority, it was not open to the authority or to the inspector to conclude that very special circumstances had been made out by reference to a figure, such as that set out in the revoked RSS, that did not even purport to reflect the full, objectively-assessed needs for housing applicable at the time the figure was arrived at.
A figure that took account of constraints on development should not have any role in assessing an assertion by an applicant in the position of the claimant that an actual housing requirement had not been met. Such constraints did not bear upon the actual need for dwellings; although they were relevant when assessing how the identified need could be addressed, they could not reasonably be used simply to reduce the number of dwellings calculated as necessary to meet housing need.
The NPPF represented a new start with a large number of planning policies being revoked and replaced. It did not require or permit a decision-maker to adopt an old constraints-adjusted RSS figure arrived at having regard to the policy requirements as they applied at the time when the RSS took effect. The decision-maker was required to consider each application or appeal on its merits. Having identified the full, objectively-assessed needs figure, the decision-maker had then to consider the impact of the other policies set out in the NPPF, such as the green belt policy.
It was circular to argue that there were no very special circumstances, based on objectively-assessed but unfulfilled need, that could justify development in the green belt by reference to a figure that has been arrived at under a revoked policy that itself took account of the need to avoid development in the green belt.
It followed that the approach adopted by the inspector was wrong in law. The proper course would have been to assess need, then to identify the unfulfilled need having regard to the supply of specific deliverable sites over the relevant period, before deciding whether fulfilling the need, together with the other factors relied on in support of the development, together demonstrated very special circumstances that clearly outweighed the identified harm to the green belt that would be caused by the proposed development. The inspector’s error was fundamental and could realistically have made a difference to the outcome. Her decision should be quashed accordingly.
Paul Stinchcombe QC and Ned Helme (instructed by Photiades Solicitors, of St Albans) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendant; Matthew Reed (instructed by the legal department of St Albans City and District Council) appeared for the second defendants.
Sally Dobson, barrister
