Planning policy – Residential development – Green belt – Respondent council granting planning permission for large residential development with some employment and retail use on site in green belt – Planning agreement providing for affordable housing ele§ment and financial contribution to link road improvements – Whether grant of planning permission contrary to policies in National Planning Policy Framework on green belt and other matters – Whether respondents’ decision irrational – Appeal dismissed
In 2014, the respondent council granted outline planning permission for a large development on 262 ha of open fields within the green belt in Bedfordshire, immediately to the north of the existing conurbation of Luton, Dunstable and Houghton Regis. The development was to be primarily residential with some employment use at the sides and some mixed and retail uses within the residential areas to provide local amenities. The grant of planning permission was conditional on an accompanying planning agreement, under section 106 of the Town and Country Planning Act 1990, by which the developers agreed to provide some affordable housing and to make a £45m financial contribution to improvements to the M1-A5 link road.
The development site had for some time been identified in local planning policies as an area for regeneration through development, with proposals put forward to take the site out of the green belt. Those proposals were set out both in a joint core strategy, prepared by the appellants and the respondent but never implemented, and in the respondents’ draft development strategy under the revised planning regime introduced in 2012. In a sustainability appraisal carried out in connection with the development strategy, the site scored highly against a range of planning criteria when compared with other possible sites.
The appellants considered that the element of affordable housing in the development was too low, being less than the 30% suggested in the joint core strategy and the draft development strategy. However, after considering a viability statement, the respondents decided that other powerful public interest reasons, related to the regeneration of the area and meeting future housing requirements, justified the grant of planning permission.
The appellants challenged the grant of planning permission by way of judicial review. All their grounds of challenge were rejected in the court below: see [2014] EWHC 4325 (Admin). They appealed on five grounds, contending that the respondents had erred in: (i) failing to take account of para 83 of the National Planning Policy Framework (NPPF), under which green belt boundaries were to be altered only in exceptional circumstances; (ii) misapplying para 216 of the NPPF, by failing to take into account the appellants’ unresolved objections to relevant policies in the emerging development strategy; (iii) treating the adoption of the draft development strategy as inevitable; (iv) failing to consider whether local planning needs might better be met by alternative sites, or by an alternative strategy within the site so as to reduce the retail element to make room for more affordable housing; and (v) failing to apply sequential impact tests in respect of proposed main town centre uses as defined in the NPPF.
Held: The appeal was dismissed.
(1) The guidance given in the second sentence of para 83 of the NPPF, including the requirement to show “exceptional circumstances”, related to the approach to be adopted if there was a proposal to alter the boundaries of the green belt in a local plan. Proposals for development within an area of existing green belt were instead governed by paras 87 and 88 and required “very special circumstances” to be shown. That was a stricter test than that imposed by para 83. Paragraph 83 did not lay down any presumption, or create any requirement, that the boundaries of the green belt had first to be altered via the process for changing a local plan before development could take place on the area in question. Paragraphs 87 and 88 plainly contemplated that development could be permitted on land within the green belt, without the need to change its boundaries in the local plan, provided that “very special circumstances” existed. The same applied where, as in the instant case, there was a parallel proposal to alter the boundaries of the green belt. While it might be easier first to take a site out of the green belt, according to the less demanding “exceptional circumstances” test, and then to grant planning permission without the need to satisfy the more stringent “very special circumstances” test, there was no reason why the grant of planning permission could not come first so long as the “very special circumstances” test was met. The respondents had not fallen into error as to the correct test and there was a proper basis on which they could lawfully and rationally conclude that “very special circumstances” existed to the requisite standard to justify the grant of planning permission for the development of the site.
It was not premature to grant planning permission for the development of the site in a manner which might well, in practice, pre-empt the decision on alteration of the green belt boundaries in the local plan through the development strategy proposals. That issue had properly been drawn to the respondents’ attention and they had considered it in sufficient depth to enable them to decide that, in the particular circumstances of the case, there was no sound prematurity objection to the grant of planning permission.
(2) The relevant criteria in para 216 of the NPPF had been properly identified and set out in the planning officer’s report which was presented to the respondents; that report had expressly explained that the significance to be attributed to the allocation of the site in the development strategy was limited by reason of the unresolved objections which remained to be determined. There were nonetheless proper grounds on which the respondents could lawfully consider, as a matter of their planning judgment, that the allocation of the site for development in the draft development strategy was a matter which merited being given substantial weight. Those matters included the appellants’ previous acceptance of the principle of development of the site in the joint core strategy, the continuity of the development strategy with previous policy, the absence of strong objections to the principle of development of the site and the work which the respondents had undertaken in the course of drafting and consulting on the draft development statement, to get it to the stage where it was ready to be submitted to the secretary of state for examination. There was nothing irrational in the respondents attaching weight to the development strategy to reflect that work in the context of the decision which they had to take on the application for planning permission. The respondents were entitled to give the weight they did to the development strategy in the exercise of their planning judgment, in considering whether “very special circumstances” existed to justify the development.
(3) It was apparent from the planning officer’s report that the approval of the development strategy was not treated as a completely foregone conclusion. Rather, there was careful consideration of a number of factors, including the importance of the housing and regeneration needs to be met, the continuity of the development strategy with previous policy and the absence of significant objections to the principle of development on the site, which made it very likely that the allocation of the site for development as set out in the development strategy would eventually be endorsed. It was a matter for the respondents’ planning judgment how to weigh the possible harm to the public interest which might arise from delay in considering the grant of planning permission until after the completion of the development strategy process against the benefits which might accrue from waiting until that process had finished and a new development strategy formally adopted.
(4) On the facts of the case, the respondents had not acted irrationally in failing to assess alternative sites. It was a striking feature of the case that the respondents had done considerable work in connection with the sustainability appraisal to assess possible alternative sites which might be better suited to meet local planning needs and that none had been identified which was better than the development site. There was no potential viable alternative site which was obviously material to the respondents’ consideration of whether to grant planning permission for the development site and none which the appellants or anyone else had drawn to the respondents’ attention. The appellants’ submissions based on an alleged failure to consider an alternative strategy failed for similar reasons. The planning officer’s report identified economic viability and other reasons why the retail element of the scheme was said to be justified and neither the appellants nor anyone else had suggested that a reduction in retail development should be considered as a means to increasing the affordable housing element: Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin); [2010] 1 P&CR 19 applied.
(5) There was no merit in the appellants’ assertion that the respondents had failed to apply sequential impact tests. That matter had never been raised prior to the grant of planning permission and was not of such significance that the respondents’ officers were required to give it any greater prominence in their reports. The respondents had been entitled to take the view that, so far as the size of the retail element lacked robustness under the sequential test, the substantial benefits of the scheme clearly outweighed any harm as a matter of overall planning balance.
Peter Village QC and Andrew Tabachnik (instructed by Winckworth Sherwood LLP) appeared for the appellants; Saira Kabir Sheikh QC (instructed by the legal department of Central Bedfordshire Council) appeared for the respondents; Martin Kingston QC and Hugh Richards (instructed by King & Wood Mallesons LLP) appeared for the interested parties.
Sally Dobson, barrister
