The Very Specials

What are “very special circumstances” which may justify the grant of planning permission for inappropriate development in the green belt?

Of course there is no definitive answer to that question. As set out in the National Planning Policy Framework (this is about application of national policy, rather than a matter of legislation), it is for the decision maker to determine whether the potential harm to the green belt by way of inappropriate development (the NPPF defines what is “inappropriate”) is “clearly outweighed by other considerations”.

I highlighted the difficulties of calibrating terms such as “very special circumstances” and (the test for changing green belt boundaries by way of plan making) “exceptional circumstances” in my 9 May 2020 blog post Zen & The Art Of Very Special Circumstances and also referred to a number of recent decisions.

We have now had more.

Colney Heath

Much has of course been written about the inspector’s decision letter dated 14 June 2021 in relation to a proposed residential development in Colney Heath, Hertfordshire (see eg my 19 June 2021 blog post People In Houses…).

I thought I would briefly point to the following other examples:

Focus School, Stoke Poges

This was an inspector’s decision letter dated 24 May 2021 relating to proposed works to a listed school, comprising “erection of a multi-purpose space and ancillary rooms, removal of existing modular classrooms, creation of a new footpath link with Khalsa Academy, creation of temporary construction access on School Lane and related landscaping, SUDS and other drainage works and associated works to 6 no. TPO trees.”

These were the inspector’s conclusions on “very special circumstances”:

“33. The proposal would be inappropriate development in the Green Belt. The Framework establishes that substantial weight should be given to any harm to the Green Belt, and development should not be approved expect in very special circumstances. In addition, I have found that the scheme would also have a modest adverse impact on the openness of the Green Belt and the significance of the listed building. Very special circumstances will not exist unless the harm to the Green Belt and any other harm are clearly outweighed by other considerations.

34. The other considerations before me are substantial and carry significant weight. I am satisfied that the need for the proposal to provide additional accommodation at the school for exams, assemblies and PE has been clearly demonstrated. Paragraph 94 of the Framework gives great weight to the need to expand or alter schools and pupils at the school are currently severely disadvantaged by inadequate facilities at Pioneer House. I am satisfied that there are no alternative locations within the existing building or alternative development proposals that could satisfy this need but result in less Green Belt harm or other material harm.

35. The harm to the significance of the listed building would be less than substantial, with reference to paragraph 196 of the Framework. Paragraph 193 of the Framework establishes that great weight should be given to the conservation of a heritage asset. The statement of common ground establishes that the Council is satisfied that the harm to the listed building would be significantly outweighed by the public benefits that the proposal would bring to the Academy as an educational facility, through the improved facilities it would deliver and improvements to how the Academy operates, and the experience it provides for its pupils. I see no reason to take a contrary view. I am therefore satisfied that the benefits of the proposal, which are significant benefits of a public nature, clearly outweigh the less than substantial level of harm.

36. I find that the other considerations in this case clearly outweigh the harm that I have identified. Looking at the case as a whole, I consider that very special circumstances exist which justify the development.”

Land west of Wingates Industrial Estate, Wimberry Hill Road, Westhoughton, Bolton (ref: 3253244 – 21 June 2021)

This was a decision of the Secretary of State in relation to an application, that he had called in, for a large employment development which Harworth Group had made to Bolton Metropolitan Borough Council. Bolton had resolved to grant planning permission on 10 January 2020. As described by the inspectors, B J Sims BSc (Hons) CEng MICE MRTPI and D M Young JP BSc (Hons) MA MRTPI MIHE:

The Part A outline development concept is to form an extension to the Wingates Industrial Estate where the stated intention of the Applicant Company is to create a high quality employment park incorporating the range of uses described in the application and providing 100,000sqm of floorspace.

The Part B full application is to first remove some timber animal shelters and then to create the site access and form development platforms. This is in anticipation of future proposals for buildings, including one very large scale, key storage and distribution warehouse and a number of smaller units in a range of sizes. The detailed Part B works would also include boundary landscaping works and the creation of an ecological enhancement area at the north western end of the site.”

Other proposals were considered by the same panel of inspectors at four separate inquiries including the Symmetry Park proposal referred to below.

These were the Secretary of State’s conclusions on “very special circumstances”:

“33.For the reasons given above, the Secretary of State considers that the application is not in accordance with Policies CG7AP, CG1,CG3 and OA3 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

34.The material considerations which weigh against the proposal are the harm to the Green Belt and the landscape and visual impacts. The Secretary of State affords the Green Belt harm substantial negative weight and the landscape and visual harm significant negative weight.

35.The Secretary of State considers that the evident need for development of the type proposed carries substantial weight, and the economic benefits of the proposal carry very substantial weight in favour of the scheme. He considers that the benefits of effective landscape mitigation, a net gain in biodiversity, sustainable drainage to obviate flooding concerns, off site highway works to accommodate generated traffic, new or diverted footpaths where affected by the development, improved bus services and enhanced pedestrian and cycle access to the site each carry limited weight.

36.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development.

37.For the reasons given above the Secretary of State considers that the material considerations in this case indicate a decision other than in accordance with the development plan.

38.The Secretary of State therefore concludes that planning permission should be granted.”

Symmetry Park, Junction 25 of the M6, Wigan (ref: 3253242 – 21 June 2021)

This was another call-in decision, following an inquiry held by the same inspectors, into proposals submitted by Tritax Symmetry Limited to Wigan Metropolitan Borough Council, “for the demolition of existing buildings and reprofiling of the site for development comprising:

• Full planning permission for the erection of 27,871 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), comprising two units and the provision of associated infrastructure including sub-station, car parking, landscaping, access from the A49 roundabout and internal estate road; and

Outline planning permission for the erection of up to 106,095 square metres of employment floor space (Use Class B8 with ancillary integral Use Class B1a floor space), including car parking, internal estate road and landscaping. All matters except for access are reserved, with access proposed from the A49 roundabout.”

Wigan had resolved to grant planning permission in January 2020.

These were the Secretary of State’s conclusions on “very special circumstances”:

41.For the reasons given above, and in the light of his conclusion in paragraph 43 of this letter, the Secretary of State finds no conflict with development plan policies, and thus concludes that the application is in line with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

42.The material considerations weighing against the proposal are the definitional harm to the Green Belt by virtue of inappropriate development, the limited and localised harm to Green Belt openness and the moderate harm from encroachment into the countryside. The Green Belt harm carries substantial weight. Also weighing against the proposal is the moderate visual and landscape harm, which carries moderate weight.

43.Weighing in favour of the proposal are the delivery of logistics floorspace which he accords very substantial weight. The locational benefits carry further significant weight. The socio-economic benefits also carry substantial weight. The biodiversity net gain and highway benefits collectively attract moderate weight.

44.The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. Overall, the Secretary of State considers that the economic and other benefits of the proposal are collectively sufficient to outweigh the harm to the Green Belt and to the landscape such that very special circumstances exist to justify permitting the development. As such he finds no conflict with CS Policy CP8 or Green Belt policy in Section 13 of the Framework.

45.Overall the Secretary of State considers that the material considerations in this case indicate a decision which is in line with the development plan – i.e. a grant of permission.

46.The Secretary of State therefore concludes that planning permission should be granted.”

We will continue to see decisions like this, and those referred to in my blog post last year, for so long as local plans do not properly meet the needs for development and/or manage green belt boundaries, although:

⁃ the value of call-ins versus the cost and delays arising may be another question, and

⁃ It is a brave local authority that even attempts to plan for release – see e.g. Green Belt housing plans approved by councillors (Enfield Dispatch, 12 June 2021) and the surrounding brouhaha.

Meanwhile of course the rather dull debate continues as to whether there should be a proper reconsideration of green belt policy – dull only because it is clear how politically toxic (and therefore utterly hypothetical as an idea, whatever its merits) this would be. The HCLG Select Committee’s June 2021 report The future of the planning system in England recommended:

“We agree with evidence that called for the protection of the green spaces in the Green Belt; whilst also recognising that not all Green Belt land are green spaces. A review should examine the purpose of the Green Belt, including whether it continues to serve that purpose, how the public understand it, what should be criteria for inclusion, and what additional protections might be appropriate. The creation of new Local Plans also provides an opportunity for local reviews of Green Belts and the Government should help identify those local authorities where such reviews are particularly urgent. Local Plans can also relieve pressure on Green Belts by prioritising developments on brownfield sites. The Government should ensure there is sufficient funding provided to support their decontamination.”

That recommendation was roundly rejected by housing minister Christopher Pincher in the House of Commons on 14 June 2021:

We are committed not only to protecting the green belt but to enhancing it, and those protections will remain in force when we bring in planning reforms. I can assure you, Mr Speaker, that we will not be taking the advice of the Select Committee, which suggested that we should undertake a wholesale reform of the green belt. We have committed to protect it, and so we shall, because only in exceptional circumstances may a local authority alter a green-belt boundary, using its local plan and consulting local people on where essential new housing should go, and it needs to show real evidence that it has examined all other reasonable options before proposing to release the green belt. We are committed to the green belt, and we will fight for it.”

i.e. , when it comes to any green belt reform, the Government will continue to…

Do Nothing.

Simon Ricketts, 25 June 2021

Personal views, et cetera

This week’s Clubhouse Planning Law Unplanned session will be at 5pm on Monday, so as not to draw too many people from the Tuesday evening football. We celebrate Pride month with Planning with Pride. There will be a series of special guests from the planning world, curated by my Town colleague Spencer Tewis-Allen. We would love your support. An invitation to the app and event is here.

People In Houses…

…really don’t want other people to have houses, do they?

FT, 19 June 2021
Times, 19 June 2021
Telegraph, 19 June 2021

The prime minister can hardly be surprised when the affluent home-owning constituents of Chesham and Amersham register a protest vote against his plans for change, thinking that in some way he is coming for their beautiful part of the country, even though it bristles with statutory protections from development. First there has been the insensitivity with which HS2 has been forced through the Chilterns AONB with the case for longer tunnelling rejected (see my 30 July 2016 blog post HS2: The Very Select Committee) and secondly, as hitherto loyal Conservatives, they will have taken the prime minister at his word when with typical hyperbole he said in his foreword to last August’s white paper:

“Thanks to our planning system, we have nowhere near enough homes in the right places. People cannot afford to move to where their talents can be matched with opportunity. Businesses cannot afford to grow and create jobs. The whole thing is beginning to crumble and the time has come to do what too many have for too long lacked the courage to do – tear it down and start again.

That is what this paper proposes.

Radical reform unlike anything we have seen since the Second World War.

Not more fiddling around the edges, not simply painting over the damp patches, but levelling the foundations and building, from the ground up, a whole new planning system for England.”

“And, above all, that gives the people of this country the homes we need in the places we want to live at prices we can afford, so that all of us are free to live where we can connect our talents with opportunity.

Getting homes built is always a controversial business. Any planning application, however modest, almost inevitably attracts objections and I am sure there will be those who say this paper represents too much change too fast, too much of a break from what has gone before.

But what we have now simply does not work.

So let’s do better. Let’s make the system work for all of us. And let’s take big, bold steps so that we in this country can finally build the homes we all need and the future we all want to see.”

How easy it must be for other parties and for campaign groups to scaremonger when such coarse analogies are used – war, tearing things down, levelling foundations, building from the ground up.

The paper itself was not nearly as radical as the foreword would suggest and we have seen no further detail since. And so he is now on the defensive:

The Independent, 18 June 2021

“What we want is sensible plans to allow development on brownfield sites. We’re not going to build on greenbelt sites, we’re not going to build all over the countryside.”

[What does this even mean? Of course there will continue to be green field development, and of course some green belt development – as there is under the current system].

This is such an unnecessarily controversial issue, carelessly caused, cynically amplified. The planning system doesn’t need to be torn up and was never going to be torn up. But where have the ministers been to explain, to persuade, to engage? Instead, a resounding, almost embarrassed, silence since that August 2020 white paper. The news vacuum as to the form that changes are likely to take has of course been filled with media speculation and campaigners’ characterisations which have now served to make the whole question more political than it ever needed to be.

We all know that what is needed is for the current planning system to work better, largely through clearer carrot and stick policies, through specific process improvements and simplifications – and with better resourcing. So as to deliver, yes, more homes, yes economic growth, yes in a planned way, yes meeting environmental and social, not just economic, goals. But none of that’s going to happen now is it? Because politics is all about retaining power, and planning is dependent on politics. So if you are relying on the planning system to enable you to move out of your parents’ house or out of an HMO; to start a family, or to grow a business, you know what? Your needs don’t matter. Not against the needs of a politician who doesn’t want to be the next Peter Fleet.

All this of course means that the current system needs to continue to work as best it can. The good news is that at least this week we had that Colney Heath appeal decision letter to demonstrate that the entire system is in fact not in total meltdown. If an area is without an up to date plan, with a severe unmet housing need, with need for affordable housing and for sites for self build homes, planning permission may be granted even if the land is, horror of horrors, politicians look away, green belt. My firm Town (well, my colleague Paul Arnett) was pleased to play at least a small role in the appeal as planning solicitors for the appellant, negotiating a section 106 agreement with the St Albans and Welwyn Hatfield councils that secured a commitment that 45% of the 100 homes proposed would be affordable housing and 10% would be self-build, delivering a strategy first formulated by Chris Young QC and developed and implemented at the inquiry itself by Zack Simons (who kindly brought us onto the team). Russell Gray at Woods Hardwick was the lead planning witness and coordinated the team.

Inspector Christa Masters determined that the following were “very special circumstances” that justified inappropriate development in the green belt:

provision of market housing

“I am aware of the Written Ministerial Statement of December 2015 which indicates that unmet need is unlikely to clearly outweigh harm to Green Belt and any other harm so as to establish very special circumstances. However, in common with the appeal decision referred to, I note that this provision has not been incorporated within the Framework which has subsequently been updated and similar guidance within the Planning Practice Guidance has been removed. I can therefore see no reason to give this anything other than little weight as a material consideration.

It is common ground that neither SADC or WHBC can demonstrate a five year supply of deliverable homes. Whilst there is disagreement between the parties regarding the extent of this shortfall, the parties also agreed that this is not a matter upon which the appeals would turn. I agree with this position. Even taking the Councils supply positions of WHBC 2.58 years and SADC at 2.4 years, the position is a bleak one and the shortfall in both local authorities is considerable and significant.

There is therefore no dispute that given the existing position in both local authority areas, the delivery of housing represents a benefit. Even if the site is not developed within the timeframe envisaged by the appellant, and I can see no compelling reason this would not be achieved, it would nevertheless, when delivered, positively boost the supply within both local authority areas. From the evidence presented in relation to the emerging planning policy position for both authorities, this is not a position on which I would envisage there would be any marked improvement on in the short to medium term. I afford very substantial weight to the provision of market housing which would make a positive contribution to the supply of market housing in both local authority areas.”

⁃ provision of self-build

“In common with both market housing and affordable housing, the situation in the context of provision of sites and past completions is a particularly poor one. To conclude, I am of the view that the provision of 10 self build service plots at the appeal site will make a positive contribution to the supply of self build plots in both local planning authority areas. I am attaching substantial weight to this element of housing supply.”

⁃ provision of affordable housing

“The uncontested evidence presented by the appellant on affordable housing for both local authorities illustrates some serious shortcomings in terms of past delivery trends. In relation to WHBC, the affordable housing delivery which has taken place since 2015/16 is equivalent to a rate of 23 homes per annum. The appellant calculates that the shortfall stands in the region of 4000 net affordable homes since the 2017 SHMA Update, a 97% shortfall in affordable housing delivery. If the shortfall is to be addressed within the next 5 years, it would required the delivery of 1397 affordable homes per annum. In SADC, the position is equally as serious. Since the period 2012/13, a total of 244 net affordable homes have been delivered at an average of 35 net dwellings per annum. Again, this equates to a shortfall also in the region of 4000 dwellings (94%) which, if to be addressed in the next 5 years, would require the delivery of 1185 affordable dwellings per annum.

The persistent under delivery of affordable housing in both local authority areas presents a critical situation. Taking into account the extremely acute affordable housing position in both SADC and WHBC, I attach very substantial weight to the delivery of up to 45 affordable homes in this location in favour of the proposals.”

I recommend Zack’s 15 June 2021 blog post Notes from the Green Belt: what’s so very special about Colney Heath?

I also recommend Chris’ earlier paper Winning an inquiry: it’s the benefits, stupid.

More decisions such as Colney Heath are inevitable where authorities, admittedly struggling at times with a sclerotic local plans system, fail to deliver, which of course makes this scaremongering about a new planning system so nonsensical.

Topically, at 6pm this Tuesday 22 June our Clubhouse Planning Law, Unplanned theme is “How can we build enough, affordable, housing?”. Our special guests are Chris Young QC, Nick Walkley (ex Homes England chief executive), Claire Dickinson (director, Quod) and Ric Frankland (founder, wudl.). Please join us. A free link to the app and event is here.

Simon Ricketts, 19 June 2021

Personal views, et cetera

Zen & The Art Of Very Special Circumstances

“The past exists only in our memories, the future only in our plans. The present is our only reality. The tree that you are aware of intellectually, because of that small time lag, is always in the past and therefore is always unreal. Any intellectually conceived object is always in the past and therefore unreal. Reality is always the moment of vision before the intellectualization takes place. There is no other reality.”

Zen and the Art of Motorcycle Maintenance by Robert M Pirsig is a powerful but infuriating book, part fictionalised roadtrip autobiography, part philosophical discourse. Back when I was prepared to read something I didn’t really understand without first having an engagement letter in place, I absolutely loved it.

The book has become an unlikely cultural icon.

As has the green belt, which might have been treated in the book something like this:

What is the green belt and why do people write it as “the Green Belt”? He explained that the green belt is not singular but plural; it was originally described as a girdle rather than a belt, and is better described as a series of urban containment zones. Much of the land within the green belt is not green; much greenfield land (which can include land which is brown but not brownfield) is not within the green belt, and beyond the green belt was originally white land, which was of course never white. To pronounce land to be green belt is so powerful that many people sense that to refer to it as green belt rather than Green Belt is somehow inadequate or disrespectful, notwithstanding usual grammatical rules (a phenomenon which we also experience with references to Inspectors and Inquiries, and, oddly, Counsel).

How do I find the green belt? He sighed. One cannot find it by looking. Its defining features are present by their absence. Instead its existence can only be determined by opening up the relevant development plan, or rather, because the plan is not a plan, the policies map which is not part of the plan (and indeed the green belt around York is defined by an abolished plan which has no map with defined boundaries). Its quality of openness indeed has been determined by the Supreme Court [proper noun] as a quality which can not necessarily be seen.

He sighed again. Green belt was the yin and new towns were to be the yang.

A local planning authority may only make changes to a green belt boundary if there are “exceptional circumstances” and may only grant planning permission for inappropriate development in the green belt if there are “very special circumstances”. The qualifying adjectives are uncalibrated, so the courts have had to make the best of it (my 27 January 2018 blog post Expletive Deleted: Revising Policy was all about these sorts of linguistic problems). We have of course the Calverton ruling on “exceptional circumstances” and Dove J’s more recent ruling in the Guildford local plan case (covered in episode 6 of Heather Sargent’s planning law video podcast series Planning Law Tea Break and in Zack Simons’ #planoraks blog post Guildford’s Local Plan and “exceptional circumstances” (29 March 2020)).

As Dove J made clear in the Guildford case,

“Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.”

He can only derive this from the policy context though, not the words. Is something exceptional less rare or valuable than something which is very special? My policy test calibrator, part-constructed in the garage, would have a dial to 10. Overcoming a normal presumption is anything over 5. Exceptional is, what, about 7, maybe 8, depending on circumstances? Where do you place very special? 8.5 or 9? Of course this is largely nonsense but people trot out the tests, and understandably ask, as if there is an actual answer.

More basically why don’t we have a formulation such as “wholly exceptional circumstances” rather than “very special circumstances”? After all, we do when it comes to heritage (see the contrast between NPPF paras 194(a) and (b)). Well only because the original 1955 ministerial Circular used the term “very special circumstances”:

“Inside a green belt, approval should not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing buildings for purposes other than agriculture, sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area”.

Slightly embellished (particularly in relation to limited infilling and the redevelopment of previously developed land), this language is still recognisable in NPPF para 145.

There is a second level of uncertainty with the use of these tests: not only is the linguistic calibration imprecise, but it is for the decision maker to determine, with adequate reasoning (which may be very basic and not really susceptible to challenge), whether the circumstances are sufficiently “exceptional” or “special”.

Of course the reality is that the fuzziness is deliberate. It allows decision makers, whether the Government or local planning authorities, some necessary wriggle room.

Some recent decisions on “very special circumstances”:

North of Boroughbridge Road, York – inspector’s decision letter 23 October 2019

In finding “very special circumstances” the inspector appears to have relied upon the fact that the site did not fulfil any of the green belt “purposes”, was identified for release for housing in the emerging local plan and that the site would deliver 266 market and affordable homes. The housing land supply in York is well under 5 years (although of course the tilted balance does not apply in relation to green belt proposals).

Since former planning minister Brandon Lewis’s 17 January 2014 ministerial statement we have been wary about relying solely on housing need:

“I also noted the Secretary of State’s policy position that unmet need, […] for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the “very special circumstances” justifying inappropriate development in the green belt.”

The statement has not formally been revoked, so, back to that deliberate fuzziness, here “unlikely” is still the get out word in that it allows for exceptions (where is “unlikely” on the policy test calibrator?), or identifying something other than solely housing need to throw into the scales to assist the “very special circumstances” argument.

Seashell Trust – Stanley Road, Cheadle Hume, Stockport – Secretary of State’s decision letter 22 April 2020

“The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt.”

Oxford Brookes University – Wheatley Campus, College Close, Wheatley, Oxford – Secretary of State’s decision letter 23 April 2020

“The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt [by removal of a tower and other large, unsightly structures on the site] and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.”

West Midlands Rail Freight Interchange DCO – Secretary of State’s decision letter 4 May 2020

“67. The Secretary of State agrees with the Examining Authority that the strategic benefits of the Proposed Development in contributing to an expanded network of SRFIs would assist in achieving and promoting a modal shift of freight from road to rail, thereby playing an important part in the move to a low carbon economy. These benefits are such that they outweigh the adverse impacts identified in relation to the construction and operation of the Proposed Development (ER 9.3.1).

68. The Secretary of State notes and agrees with the Examining Authority that the national and regional need for the proposed development outweighs any harm. He therefore agrees with the Examining Authority that the very special circumstances needed to justify a grant of development consent have been demonstrated (ER 9.2.4).”

Recommended further media:

⁃ My 30 March 2018 blog post Green Belt Developments (although this was before the Supreme Court overturned the Court of Appeal in the Samuel Smith “openness” case)

Five circumstances ‘exceptional’ enough to justify green belt release in local plans, Stuart Watson, Planning (7 May 2020, £)

⁃ 50 Shades of Planning Podcast – Green Belt. Sacred Cow (22 April 2020)

⁃ (As always) John Grindrod’s book Outskirts. (Now, Mr Pirsig, that’s how you write a part autobiography, part treatise on the history of the green belt, life and everything.)

Simon Ricketts, 9 May 2020

Personal views, et cetera

Great Buddha of Kamakura, Japan.

Housing Schemes Approved By Secretary Of State In April 2020

Five out of five proposals for housing development have been approved by the Secretary of State so far in April 2020, in each instance in accordance with his inspectors’ recommendations.

Chronologically:

1 April – Vauxhall Cross Island, Lambeth

The Secretary of State approved a called in application for “the construction of a mixed-use development comprising two towers of 53 storeys (185m) and 42 storeys (151m), with a connecting podium of 10 storeys (49m), containing office (B1), hotel (C1), residential (C3) and flexible ground floor retail and non-residential institution (A1/A2/A3/A4/D1) uses plus plant, servicing, parking and other ancillary space, the provision of hard and soft landscaping, the creation of a new vehicular access point on Wandsworth Road, a vehicular layby on Parry Street and other works incidental to the development”.

“The proposal would deliver 257 homes onsite, including 23 affordable, alongside a Section 106 payment of £30m for further off-site affordable housing provision. The Secretary of State notes that, citing LB Lambeth’s past record of utilising such payments, the Inspector was satisfied this would deliver a further 54 homes and provide a total of 30% affordable… The Secretary of State notes that a viability assessment demonstrated that this was the maximum amount achievable, and was accepted by LB Lambeth.”

The Secretary of State found that the proposals would be in accordance with the development plan. The market and affordable housing components of the scheme attracted “significant weight in favour. There would also be hotel, office and retail uses in an area identified for all three, alongside a new public square. All of these would contribute to the development plan’s goal of creating a new district centre in Vauxhall. This also attracts substantial weight in favour.

(Town acted for the applicant).

1 April – Station Road, Long Melford, Suffolk

The Secretary of State allowed an appeal by Gladman Developments Limited for “outline planning permission for the erection of up to 150 dwellings with public open space, landscaping and sustainable drainage system (SuDS), and vehicular access point from Station Road, with all matters reserved except means of access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“The site is outside the settlement boundary, and would result in the development of a greenfield site into housing, which would cause visual harm. However, the settlement boundary is out of date, and the visual harm would be confined to the site itself, with limited impact on the wider settlement. This carries moderate weight against the proposal.

The proposal would provide up to 150 new homes, including around 53 affordable homes. Although the local authority can now demonstrate a supply of housing land above 5 years, this figure is a baseline and not a ceiling. Relevant to this appeal, the appellant has demonstrated there is a local need in this settlement, in line with the expectations of the development plan, for both market and affordable housing. The Secretary of State recognises that there is now a five-year supply of housing land supply. However, in the light of the identified local need, and the Government’s objective of significantly boosting the supply of homes (Framework paragraph 59), he considers that the housing delivery should carry significant weight. The proposal would provide land for a new early years centre, which attracts significant weight in favour. There would be economic benefits provided by the construction of the homes and from the new residents, which attract moderate weight. Improvements to existing public rights of way, public space and play areas, and biodiversity benefits each attract moderate weight in favour. Improvements to bus stops and footway connections attract limited weight in favour.”

7 April – Barbrook Lane, Tiptree, Colchester

The Secretary of State allowed an appeal by Gladman Developments Limited (again) for “outline planning permission for the development of up to 200 dwellings (including 30% affordable housing), provision of 0.6ha of land safeguarded for school expansion, new car parking facility, introduction of structural planting and landscaping and sustainable drainage system (SuDS), informal public open space, children’s play area, demolition of 97 Barbrook Lane to form vehicular access from Barbrook Lane, with all matters to be reserved except for access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“As the local authority are unable to demonstrate a five-year supply of housing land, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The proposal is an undeveloped agricultural site outside the settlement boundary, and the rural character of the site would change. This carries moderate weight against the proposal.

The proposal would provide up to 200 dwellings, with 30% affordable, helping the local planning authority achieve a five-year supply of housing land. This attracts significant weight in favour of the proposal. The proposal includes informal open space and safeguarded land for a school expansion, which carry limited weight. Although the site would change from rural to a housing estate, there would be little wider impact on the setting of the village as the site is well-screened. The scale of the proposal would not harm or prejudice local services, highways or residential amenity, and the site represents a sustainable location for access to jobs and services.

The Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed. The Secretary of State considers that the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits.”

22 April – Stanley Road, Cheadle Hume, Stockport

The Secretary of State allowed an appeal by the Seashell Trust “for the erection of a new school with associated kitchen and dining facilities, swimming and hydrotherapy facilities, infrastructure, drop-off parking, access, landscaping and ancillary works; the demolition of the Chadderton building, Orchard/Wainwright/Hydrotherapy/Care block, Dockray building, part of existing college, 1 Scout Hut and 1 garage block, and erection of new campus facilities (Use Class D1/D2 – Reception, Family Assessment Units, Family Support Services/Administration/Training/Storage Facility Sports Hall and Pavilion) with associated infrastructure, parking, landscaping and ancillary works; and up to 325 dwellings (Use Class C3) in northern fields with associated infrastructure, parking, access, landscaping and ancillary works”.

The site is in the green belt and the Secretary of State found that the proposals were not in accordance with the development plan. However, these were his overall conclusions:

“As Stockport Borough Council cannot demonstrate a five year housing land supply, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers that the harm to the Green Belt carries substantial weight, the ‘less than substantial’ harm to the setting of the listed building carries great weight and harm to the landscape carries moderate weight. The Secretary of State considers the proposal will harm agricultural land, habitat, non-designated heritage assets and demand for mainstream school places and attributes very limited weight to each of these harms.

The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt. In the light of his conclusion on this and the heritage test is paragraph 18 above, the Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed and further considers that the adverse impacts do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Paragraph 11(d) of the Framework therefore indicates that planning permission should be granted.”

Paul Tucker QC led the case for the appellant and this is a statement on the decision published by Kings Chambers.

23 April – Wheatley Campus, College Close, Wheatley, Oxford

The Secretary of State allowed an appeal by Oxford Brookes University for outline planning permission for “demolition of all existing structures and redevelopment of the site with up to 500 dwellings and associated works including; engineering operations, including site clearance, remediation, remodelling and deposition of inert fill material arising from demolition on site; installation of new and modification of existing services and utilities; construction of foul and surface water drainage systems, including SuDS; creation of noise mitigation bund and fencing; creation of public open space, leisure, sport and recreation facilities including equipped play areas; ecological mitigation works; construction of a building for community/sport use and associated car parking; construction of internal estate roads, private drives and other highways infrastructure and construction of pedestrian footpaths”.

Again this is a green belt site. Whilst the Secretary of State agreed with the inspector that the appeal should be allowed, he differed as to his reasoning. I set out the Secretary of Statement’s application of the planning balance and overall conclusions as follows:

“For the reasons given above, the Secretary of State considers that the appeal scheme is in accordance with the following policies of the development plan: CS Policy CSEN2, LP Policy GB4. He has identified an overall benefit to heritage assets, so has found no conflict with heritage policies CSEN3, CON5 and CON11. He has found no conflict with CS Policy CSEN1 or LP Policies G2, C4 and C9 insofar as they seek to protect the district’s countryside and settlements from adverse development. While he has found conflict with policies CSS1 and CSH1 regarding the amount and spatial distribution of housing, he has found these policies to be out of date. He has therefore concluded that the appeal scheme is in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

At IR13.118, the Inspector, having concluded that the proposed development would not conflict with the development plan, states that it should be approved without delay in accordance with paragraph 11c) of the Framework. The Secretary of State disagrees. Paragraph 11 c) of the Framework refers to “development proposals that accord with an up-to-date development plan”. As the Secretary of State has concluded that the policies which are most important for determining this appeal are out-of-date, he considers that paragraph 11 c) of the Framework does not apply.

Paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers the harm to the Green Belt on that part of the site where development is considered inappropriate carries substantial weight.

The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.

The Secretary of State considers that the economic benefits of the scheme should be afforded significant weight.

The Secretary of State has considered the development in terms of its impact on heritage assets and on accessibility and considers that both offer benefits that should be afforded significant weight.

The net benefit to biodiversity that would be delivered by the scheme is a consideration of moderate weight, and the reinvestment of the proceeds arising from the sale of the land into the education sector should be afforded significant weight.

Given his findings in this letter, the Secretary of State considers that the proposal meets the emerging Neighbourhood Plan site-specific development principles in respect of Green Belt, affordable housing and accessibility, and public open space.

Having concluded at paragraph 39 of this letter that very special circumstances exist the Secretary of State considers that there are no policies in the Framework that protect areas or assets of particular importance that provide a clear reason for refusing the development proposed. He also concludes that any adverse impacts of granting permission do not significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.”

Chris Young QC led the case for the appellant and this is a statement on the decision published by No 5 Chambers.

Quite a month so far!

Two quick plugs:

⁃ If on Thursday you watched the first Planning In Brief web event hosted by Charlie Banner QC, Chris Young QC, Sasha White QC, Paul Tucker QC and Town’s Mary Cook you would have heard some discussion about the Seashell Trust decision. I wouldn’t be surprised to hear some coverage of the Oxford Brookes decision this coming week. Another reason to make the charity donation and tune in.

⁃ Do subscribe to Town Legal’s weekly, comprehensive, inquiry appeal decisions updates. Subscriptions to this and our other update services are still free.

Simon Ricketts, 25 April 2020

Personal views, et cetera

Handy lockdown calendar
(H/t @instachaaz)

Unsuccessful Attacks On Guildford & Waverley Local Plans

Two recent salutary lessons from Surrey for campaigners tempted to resort to the courts, having failed to persuade the relevant local plan inspector.

Guildford local plan

In Compton Parish Council v Guildford Borough Council (Sir Duncan Ouseley, 4 December 2019), three separate claimants, Compton Parish Council, a Mr Julian Cranwell and Ockham Parish Council, “opposed the principle and extent of land which the submitted Plan proposed to release from the Green Belt, as well as the allocation for development of specific sites proposed for release from the Green Belt.

The main general issue (numbered 2 in the list used by the parties) was whether the Inspector had erred in law in his approach to what constituted the “exceptional circumstances” required for the redrawing of Green Belt boundaries on a local plan review. This had a number of aspects, including whether he had treated the normal as exceptional, and had failed to consider rationally, or with adequate reasons, why Green Belt boundaries should be redrawn so as to allow for some 4000 more houses to be built than Guildford BC objectively needed. The scale of the buffer did not result, it was said, from any consideration of why a buffer of such a scale was required but was simply the sum of the site capacities of the previously allocated sites. There were two other general issues (1) and (7): (1) had the Inspector considered lawfully or provided adequate reasoning for not reducing the housing requirement, leaving some needs unmet to reflect the Green Belt policy constraints faced by Guildford BC? (7) Did Guildford BC breach the Environmental Assessment of Plans and Programmes Regulations 2004 SI No.1633, in deciding not to reconsider what might be reasonable alternatives to the proposed Plan when, in 2018, the objectively assessed housing needs figure was reduced from 12,426 to 10,678, with housing land supply allocations totalling 14,602. It was submitted that it ought to have considered alternatives such as removing the development allocation in the Green Belt from one or more of the contentious large sites.”

But there were also site specific grounds of challenge. The first site specific issue, (4), relating to the former Wisley airfield, was the adequacy of reasons given by the Inspector in his report on the PE for reaching conclusions which, it was said, were inconsistent with the views expressed by an Inspector, accepted by the Secretary of State, on an appeal against the refusal of planning permission for a major residential development at the former Wisley airfield, taking up most of the Local Plan allocation there. The appeal Inquiry began before the PE and the decision emerged in the course of the PE. The second site specific issue at Wisley, (5a), concerned the extent of land removed from the Green Belt yet not allocated for development, termed “white land”; issue (5b) concerned the lawfulness and effect of the submission of the 2017 version of the Plan, when the further consultation on it was restricted to the 2017 changes, and did not encompass unchanged aspects of the 2016 version, upon which there had already been consultation in 2016. The third issue, (8), concerned the lawfulness of the approach by the Inspector to the air quality impact of the Wisley allocation on the Thames Basin Heaths Special Protection Area, the SPA. It was initially said that the Conservation of Habitats and Species Regulations 2017 SI No.2012 required the decision-maker to leave mitigation and avoidance measures out of account; but the argument was refined so that it attacked the assessment that there would be no adverse effects, on the basis that there would still be exceedances of critical thresholds, even though the baseline levels of pollution would have reduced.

The site-specific issues raised in respect of the Blackwell Farm allocation were, (3), that the local exceptional circumstances relied on by the Inspector were not legally capable of being regarded as “exceptional”, and that strategic and local “exceptional circumstances” overlapped, leading to double counting of exceptional circumstances. The other issue at Blackwell Farm was, (6), whether the Inspector erred in law in the way he considered the new access road. This would have to climb the escarpment to link to the A31, and a section of which would pass through the part of the Surrey Hills Area of Outstanding Natural Beauty, the AONB, which lay to the north of the A31. Should he have concluded that this would be “major development” in the AONB and so face a policy obstacle to its approval which could put the allocation at risk, or even prevent its being delivered? He should at least have taken this risk into account.”

After assessing the extent of local housing need the inspector concluded that there was “to strategic-level exceptional circumstances to alter the Green Belt boundary to meet development needs in the interests of the proper long-term planning of the Borough.

Some highlights:

Issue 1: did the Inspector consider and provide legally adequate reasons for his conclusion that the objectively assessed need for 10678 dwellings should be met in full, notwithstanding the consequent need for the release of land from the Green Belt?

There is no definition of the policy concept of “exceptional circumstances”. This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case; Calverton Parish Council v Nottingham City Council [2015] EWHC 1078 at [20], Jay J. It is deliberately broad, and not susceptible to dictionary definition.”

“”Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.” That difference is clear enough from the language itself and the different contexts in which they appear, but if authority were necessary, it can be found in R(Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at [56], Sales LJ. As Patterson J pointed out in IM Properties Development Ltd v Lichfield DC [2014] EWHC 2240 at [90-91 and 95-96], there is no requirement that Green Belt land be released as a last resort, nor was it necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events.”

“Mr Kimblin put forward Mr Cranwell’s contention that the supply of land for ordinary housing, even with the combination of circumstances found here to constitute exceptional circumstances by the Inspector, could not in law amount to “exceptional circumstances.” I cannot accept that, and I regard it as obviously wrong.”

“The Inspector has already considered the pressing needs, and the consequence of them not being met. Here he considers whether the consequence of those needs being met, through releases of Green Belt land, mean that they should nonetheless not be met. His conclusion is clear: there is no justification for applying a restriction on the quantity of development. His reasoning is clear and adequate: land can be found within the Green Belt, through boundary changes, with relatively limited impacts on openness, elaborated elsewhere in the Report, and without causing severe or widespread harm to its purposes. He also considered whether further land could be made available in the urban areas; IR 81-2; these had been thoroughly investigated; significant constraints existed; any extra yield from sites which could have potential not yet earmarked, “would fall a long way short of making the scale of contribution towards meeting overall development needs that would enable the allocated sites in the Green Belt to be taken out of the Plan.”

“I reject the Claimants’ first ground of challenge. This issue and whether a policy restraint should be applied to the OAN was considered and the Inspector’s conclusion that there should be no restraint below OAN was supported by ample reasoning.”

“Issue 2: Was the conclusion that there were exceptional circumstances justifying the allocations of housing land, released from the Green Belt, to provide headroom of over 4000 dwellings above the 10678 OAN lawful, and adequately reasoned?”

“…in my judgment, once meeting the OAN is accepted as a strategic level factor contributing to “exceptional circumstances”, as it has to be for the purpose of this Issue in the light of my conclusions on Issue 1, it follows that the provision of headroom against slippage and for flexibility to meet changes, “future-proofing” the Plan, as the Inspector put it, would also contribute to such circumstances.”

“...having read the strategic and Local-level exceptional circumstances, which have to be taken together, I had no sense of having read something illogical or irrational, or which strained the true meaning of “exceptional circumstances.” I can see that a different approach to the quantity of headroom might have commended itself, but that was plainly a matter of planning judgment.”

Issue 7 Sustainability Appraisal”

“The Claimants contended, through Mr Harwood, that once the OAN was reduced from 12426 to 10678 as a result of the publication in September 2018 of the 2016 household projections, there should have been a further SA examining reasonable alternatives which matched allocations to the OAN figure of 10678, with the Wisley airfield allocation in mind in particular however.”

“I cannot accept these arguments. No complaint is made of the SA process before the effect of the 2016 household projections was considered. First, the objectives of the Plan had not changed; the objective was not the provision of 10,678 dwellings; it was not simply the provision of the OAN plus an appropriate buffer. I have set out how the objective was phrased in the earlier versions of the SA. An updated SA, confining itself to the provision of 10,678 dwellings, omitting any buffer, would not have been a reasonable alternative, as previous SAs concluded, and would have been for an objective other than that of the Plan.

The judgment that an OAN without any buffer was not a reasonable alternative, was a reasonable judgment for Guildford BC to make. It could only be attacked on rationality grounds; see Spurrier and Others v Secretary of State for Transport and Others [2019] EWHC 1070 (Admin) at [434]. That would be untenable.

Second, whether the effective increase in the headroom or buffer, but without change to the level of housing allocation, was a significant change or one likely to have significant effects was a matter for the judgment of Guildford BC, as the decision-maker. It is clear that the overall level of housing supply was within the range already considered. All the housing allocations had already been evaluated. The judgment that the change was not significant or likely to have significant effects which had not already been considered, was reasonable.

Third, the only point in considering further alternatives would have been whether one or two large sites should be removed from the allocations. The smaller, sequentially less preferable Green Belt releases around villages, totalling 945 dwellings, could not have been omitted from any reduced buffer because of their importance in meeting the five-year housing supply in the early years of the Plan after adoption. Guildford BC and the Inspector did in fact consider whether the increased level of buffer in the same total supply, with a reduced OAN, was appropriate. They each concluded that it was, and that no large Green Belt site allocation should be now omitted. The arguments for deleting one or more of the 3 large sites were raised; indeed there was an obvious issue about whether that would be an appropriate response. Guildford BC and the Inspector considered it. Guildford BC was entitled to conclude that a further round of SA was quite unnecessary. The Inspector agreed, in his Report. There was no misdirection as to the law; it was for Guildford BC to judge whether there had been a change in circumstances or in the plan which warranted a further SA. This judgment can only be challenged on public law grounds; the only one available would be irrationality. There was no irrationality in the decision.”

Even if there had been an error, and assuming that the omission of one or two of the large sites would have been a reasonable alternative to consider, it is perfectly obvious that the allocations in the adopted plan would have been the preferred choice. That issue was considered by both Guildford BC and by the Inspector. Omission of a further SA would have been a procedural error causing no prejudice, let alone substantial prejudice to anyone. Even if one going to vires, I would have exercised my residual discretion to take no action, given that it is perfectly obvious that it could have had not the slightest effect on the outcome of the Plan.”

“Issue 4: the Wisley airfield appeal decision and the way in which the Inspector dealt with it.”

“I do not consider that it was necessary for the LP Inspector to take the AIR and analyse all its views against his views on the various topics. There is perhaps a difference in emphasis in the LP IR comments on the Green Belt releases in general “relatively limited impacts on openness” and their not causing “severe or widespread harm”, and the AIR comment that there would be “very considerable harm” to the Green Belt from the Wisley allocation. However, as IR 182 makes clear, on a comparative basis, the Wisley site was of medium sensitivity. Its development would avoid putting pressure on other Green Belt areas of greater sensitivity. This comparative exercise, underpinned by the Green Belt and Countryside Study, was not a task which the appeal Inspector could undertake or attempted to undertake; but was essential for the LP Inspector. The same applies to the assessment of the degree of visual prominence: the LP IR comments on the allocation as “fairly self-contained visually,” being on a plateau and not prominent, whereas the AIR thought it visible along its length to highly sensitive receptors, though quite well screened in certain respects. But the sites they consider differed in an important respect and with an adverse effect for the appeal scheme. It is obvious from the AIR that the narrowness of the appeal site exacerbated the prominence of the appeal development. The LP Inspector also considered that specific design objectives, should be in the Plan, via a Main Modification, Policy A35.The effect on the character of the area is referred to in IR 181, but is a factor outweighed by the compelling strategic-level exceptional circumstances. The LP Inspector obviously considered the appeal decision, but found the circumstances he had to deal with, compelling.”

“Accordingly, I reject the contention that it is not possible to see why the LP Inspector reached the conclusion he did, having considered, as he obviously did, what the AIR and Secretary of State had to say. In the circumstances known to all participants about the differing tasks, the reasons are sufficient. There was no need to identify, issue by issue, where the LP Inspector did or did not, to some degree, agree or disagree with the appeal Inspector. Such differences as there may be are explained by the different focus of their tasks and the different cases they were considering.”

Issue 8: The air quality impact of the allocation at the former Wisley airfield”

“It is perfectly clear, in my judgment, that Guildford BC, whose task it was to undertake the HRA, did consider whether significant adverse effects were likely from the development proposed in the Local Plan; it then undertook an appropriate assessment to see whether there would be no adverse effect on the SPA. That could not be answered, one way or the other, by simply considering whether there were exceedances of critical loads or levels, albeit rather lower than currently. What was required was an assessment of the significance of the exceedances for the SPA birds and their habitats. Guildford BC did not just treat reductions in the baseline emissions or the fact that with Plan development, emissions would still be much lower than at present, as showing that there would be no adverse effect from the Plan development. The absence of adverse effect was established by reference to where the exceedances of NOx and nitrogen deposition would occur, albeit reduced, and a survey based understanding of how significant those areas were for foraging and nesting by the SPA birds. The approach and conclusion show no error by reference to the Regulations or CJEU jurisprudence. I have set out the 2019 HRAs at some length. The judgment is one for the decision-maker, as to whether it is satisfied that the plan would not adversely affect the integrity of the site concerned; the assessment must be appropriate to the task. Its conclusions had to be based on “complete precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effect of the proposed works on the protected site concerned”; People Over Wind. But absolute certainty that there would be no adverse effects was not required; a competent authority could be certain that there would be no adverse effects even though, objectively, absolute certainty was not proved; R (Champion) v North Norfolk District Council [2015] UKSC 52 at [41], and Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 at [78]. The same approach applies, following the Dutch Nitrogen case, to taking account of the expected benefits of measures not directly related to the plan being appropriately assessed.”

Issue 6: The access road at Blackwell Farm and major development in the AONB

“The issue before me was whether the Inspector reached a conclusion on whether the access road was “major development” in the AONB, to which NPPF [116] applied; a contrary conclusion was said to be irrational. If he had reached no conclusion, he ought to have considered the risk to the allocation, and hence to its deliverability, which would arise when a planning application was made, and a decision could be reached that it was indeed “major development”, with all the weight, adverse to the development, which would have to be given to such a conclusion.”

“I can see the force in the argument from Mr Findlay and Mr Turney that the Inspector has in substance concluded that, with the Main Modifications, the means have been provided for the access road to be constructed in such a way that it would not constitute “major development.” However, he has not expressly so concluded, and it would not have been for him to express the decisive view on the point, or to do so in advance of the detailed design of the road. He has reached the view that the road would not inevitably be “major development”, and that it could be designed and landscaped so that the risk of a significant hurdle to the delivery of the allocation is minimised. I do not consider that he needed to go further. In effect, the degree of risk, with the modification, was not such that it made him find the allocation to be unsound. He considered the issue; his language makes his view clear that he sees no significant risk, and is adequately reasoned.

But it cannot be ignored that he has included an extent of headroom, complained of by the Claimants, in part because he recognised the difficulties which larger sites face. This issue was not expressly part of his consideration of the justification for the headroom, but hurdles and delays in the way of approving infrastructure would have been well within his contemplation of the sort of problems which larger sites face.”

Three days in court, eleven barristers, all claims rejected.

Waverley local plan

In CPRE Surrey v Waverley Borough Council (Court of Appeal, 31 October 2019) CPRE Surrey and POW Campaign were appealing against the dismissal of their applications at first instance which had sought to challenge the adoption of the Waverley local plan. They contended that “the council erred in law in adopting the Local Plan Part 1 because the inspector who carried out the examination of it under section 20, when identifying the objectively assessed need (“OAN”) for housing in the borough of Waverley, took an unlawful approach to the treatment of the unmet housing need in the neighbouring borough of Woking. CPRE Surrey also complain that the relevant reasons in the inspector’s report were inadequate. The crucial point, common to both appeals, concerns the inspector’s recommended Main Modification 3, which the council accepted, whose effect was to increase the annual housing requirement figure in Waverley by 83 dwellings per annum – 1,575 dwellings over the whole plan period – to address unmet housing need in Woking.

There were four issues: “first, whether the inspector’s approach to the assessment of unmet housing need in Woking was unlawful and his conclusion unreasonable; second, whether his assessment was vitiated by a failure to seek further information; third, whether he was obliged to recommend a review of the Local Plan Part 1; and fourth, whether his reasons were inadequate”.

At paragraph 35 of his judgment Lindblom LJ sets out the principles applying where there is a challenge to a planning decision-maker’s assessment of housing need, by reference to the relevant case law.

He addresses the claimants’ arguments that the inspector had adopted an incorrect approach in failing to assess Woking’s objectively assessed need before deciding to increase Waverley’s housing requirement figure:

“I cannot accept those submissions, skilfully presented as they were. The fatal weakness in such arguments is that they draw the court beyond the line dividing the role of the judge from the role of the planning decision-maker – territory where the court will not intrude. In my view the judge’s analysis is consistent with the general principles recognized and applied in the authorities. As she held, the inspector’s approach to the issue of unmet housing need in Woking was lawful, and his conclusion did not exceed the range of reasonable planning judgment.”

“In the circumstances he was entitled to conclude, as a matter of planning judgment, that it was reasonable to calculate the necessary uplift to Waverley’s OAN by taking 50% of “the figure for unmet need identified through the [2015 SHMA] process”. This conclusion entailed not merely his judgment on the appropriate proportion, but, in effect, a composite judgment on both amount and proportion: hence the figure of 83 dwellings per annum. Another inspector might have reached a different conclusion on the same evidence, but this does not mean that the conclusion he did reach was legally bad. The conclusion that the appropriate proportion was 50% – rather than, say, 60% or 70% or 75% – was comfortably within the bounds of reasonable planning judgment. In judging this to be the appropriate proportion, the inspector took care not to overstate the amount of Woking’s unmet need that should be met in Waverley. This was a cautious judgment, which deliberately allowed for the uncertainties to which he had referred. The ingredients of the calculation itself were clear. They had been identified at the examination, and were explained in the inspector’s conclusions (paragraphs 26 and 29 and footnote 9). And the figure it produced was specific enough for its purpose. It was not unreasonably approximate.”

As for the attack on the adequacy of his reasons:

Generally at least, the reasons provided in an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed than the reasons in the report or decision letter of an inspector in a section 78 appeal against the refusal of planning permission. As Mr Beglan submitted, it is not likely that an inspector conducting a local plan examination will have to set out the evidence given by every participant if he is to convey to the “knowledgeable audience” for his report a clear enough understanding of how he has decided the main issues before him.

But the crucial point here is that the inspector explained sufficiently why he had concluded that 50% of Woking’s unmet housing need should be planned for in the Local Plan Part 1. His reasons leave no room for sensible doubt on that issue. He did not have to set out the representations in which various possible conclusions – a wide range of them – were put forward, or summarize the relevant evidence. Participants in the process were familiar with the submissions and evidence. The inspector’s reasons had only to set out the main parts of his assessment and the essential planning judgments in it. They did that.”

That reasoning is clear, adequate and intelligible. Nothing that ought to be there is left out. Nothing is obscure. The appellants disagree with the outcome of the inspector’s assessment. But they cannot say that the reasons he gave in those four paragraphs of his report left them unable to see why he concluded as he did.

Simon Ricketts, 6 December 2019

Personal views, et cetera

Image courtesy of Surrey Life

More Plans Grounded: West Of England; Sevenoaks; London

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism commented on the previous Secretary of State’s 18 June 2019 letter to PINS, which stressed the need for pragmatism on the part of local plan inspectors.

MHCLG must be careful not to shoot the messenger. Inspectors are continuing to point out basic flaws in plans which, in most cases, have been pretty clear to the planning community for some time. Aside from the passive aggressive approach of that letter, which I hope will not be supported by the new Secretary of State, inspectors are also facing increasing hostility from some local political leaders.

West of England joint spatial strategy

I referred in my 17 August blog Gestation Of An Elephant: Plan Making to the inspectors’ letter dated 1 August 2019, which was provisionally recommending withdrawal of the West of England joint spatial strategy. Since then the inspectors have set out their detailed reasoning in a subsequent letter dated 11 September 2019 which focuses on the “key points which have led us to conclude that there are very substantial soundness problems with the plan.

The plan had identified that 17,000 dwellings needed to be provided at 12 “strategic development locations”. The inspectors pointed out that despite the fact that the plan comprised two housing market areas and despite evidence as to various local housing needs, “no requirement figures (either precise or indicative) have been considered or identified for any individual settlements, for each local authority area or for any other sub- area of the West of England as a whole. Thus, we understand that the SDLs were selected on the basic presumption that any candidate SDL anywhere within the plan area could meet the plan area’s housing needs just as well as any other candidate.” There was no robust assessment of reasonable alternatives.

[We] conclude that robust evidence has not been provided to demonstrate that the 12 SDLs proposed in the plan have been selected against reasonable alternatives on a robust, consistent and objective basis. Consequently, given that the SDLs are an integral part of the plan’s spatial strategy, we cannot conclude that the spatial strategy is itself sound. Additionally, the absence of a robust SDL selection process or a strategy which is not based on specific SDLs means that there is not a clear basis on which to select alternative/additional SDLs (either in a review of the JSP or in local plans) should this be necessary if one were to “fall away” (eg because of deliverability problems) or if the quantum of development needs were to change over time.”

The inspectors plainly were aware of that need for “pragmatism” (indeed the advice is acknowledged paragraph 49 as a matter to which they attached “great weight”). They say this:

We first set out our concerns about the spatial strategy and the SDL selection process in June 2018, a few weeks into the examination. In the spirit of pragmatism and recognising the desirability of getting a sound plan in place, we gave you the opportunity to prepare a considerable amount of further evidence in an attempt to address these concerns. Unfortunately, this has not been successful and for the reasons detailed above our concerns remain and, indeed, have deepened. In the light of this we consider that any further work to simply re-justify the selection of SDLs included in the plan or any change in the way the existing strategy is merely articulated in the JSP, could not now be considered to be anything other than retrospective justification of the plan. Consequently, it would be very unlikely to persuade us that the SDLs, and thus the spatial strategy overall, were selected on a robust, consistent and objective basis.

The approach to SDLs was not the only issue. The inspectors also set out their concerns as to:

⁃ “the approach to, and policy steer on, the purpose, amount and distribution of non-strategic growth; and

⁃ the plan’s proposals for overall employment land provision if, as we believe is likely, we were to conclude that policy 4 is not sound, including proposals for, or the policy steer on, growth at Bristol Port and Bristol Airport if, as we believe is likely, we were to conclude that the plan is not currently sound in these particular respects.”

Furthermore:

Additionally, if we were to conclude that the contended OAN of 102,800 is significantly underestimated, there would be a need to provide for a significantly higher objective-assessed need for housing in the plan.

Moreover, each of these elements cannot be considered in isolation, as the preferred and justified approach in relation to one is likely to impact on at least some of the others. Furthermore, there would need to be robust justification that there are exceptional circumstances to justify any proposed alterations of the Green Belt boundary for housing or any other purposes. It is also very likely that key policy decisions would need to be taken in respect of most or all of these elements of the plan.”

Finally, there is recognition of the confusion caused to local communities by endless stages of re-consultation in relation to flawed plans:

At the hearings we heard from a number of examination participants who were already confused by the processes of, and multiple rounds of consultation undertaken in, getting the plan to this stage. This was particularly so given the parallel processes of developing and consulting on the emerging local plans for each authority and the Joint Local Transport Plan 4. Continuing with the examination along the, undesirable, lines detailed above would also be likely to be more complicated in consultation and public participation terms than returning to the plan preparation stage, thus potentially hindering the community’s ability to comment on and influence the plan.

Consequently, whilst we recognise that the Councils’ preference might be to continue with the examination if at all possible and, although we will not reach a final decision on the way forward until we have had the opportunity to consider the Councils’ response to this letter, we remain of the view that withdrawal of the plan from examination is likely to be the most appropriate option.”

Sevenoaks district local plan

The Sevenoaks plan is another one that has pretty much crash-landed on take off. The hearing sessions started on 24 September 2019. On 17 October 2019, the inspector wrote a one and a half page letter to the council to indicate that she has “significant concerns about a number of aspects of the Plan, both in terms of legal compliance and soundness.

She states:

“My main concern relates to the lack of constructive engagement with neighbouring authorities to resolve the issue of unmet housing need and the absence of strategic cross boundary planning to examine how the identified needs could be accommodated. Indeed, the Council did not formally ask neighbouring authorities if they were in a position to address its unmet housing need until just before the Local Plan was submitted for Examination. I am not satisfied, therefore, that the Council has addressed this key strategic matter through effective joint working, but has rather deferred it to subsequent Plan updates. This is evidenced by the ‘actions’ set out in the Statements of Common Ground with neighbouring authorities submitted to the Examination. I consider this to be a significant failure in the Council’s Duty to Co-operate. Any failure of the Duty to Co-operate cannot be rectified during the Examination and therefore the only option is for a Report recommending non-adoption to be issued or for the Plan to be withdrawn from Examination.

Furthermore, I have significant concerns about the soundness of the Plan in respect of a number of areas including the approach to Sustainability Appraisal, the chosen Strategy for Growth, the assessment of the Green Belt and housing supply and distribution.”

What is no doubt frustrating to the council, aside from the very visible and expensive failure, which will have significant practical consequences not just for the district but for plan-making by nearby authorities, is the lack at present of more detailed reasoning. A more detailed letter is promised. However, surely nothing excuses the council’s intemperate response, which is hardly likely to assist a positive outcome. The council’s disappointment is clear enough from its formal response dated 21 October 2019:

The Inspector’s initial conclusions are at odds with the independent advice that the Council received in advance of submission, including our discussions with the Government’s own Planning Advisory Service (PAS), the opinion of a QC and industry experts – including former senior Planning Inspectors. This extensive peer review was undertaken in good faith, to inform the examination process and avoid the circumstances that we now appear to find ourselves in.”

However, surely comments attributed to the council’s leader in its press statement issued the same day are inexcusable, for instance:

To call into question an evidence-led approach comes to the root of our concerns with the actions of the Inspector. If we are not to follow the evidence to make our Plan then the Government may just as well dictate how many homes an area should have and then pick sites, we need to put an end to the thinly veiled charade that local plans are in any way locally led.

“But the most damning comment has to be left for the Inspector’s approach to publish her brief note before allowing the Council to either see her full reasoning or have a chance to respond. This suggests her mind is far from open and she and her masters have made their minds up.

“Sevenoaks District Council will stand up for its residents and the District’s environment against what we believe is a huge abuse of the process by the Planning Inspectorate and the Government department responsible. We will not allow them to run roughshod over the huge weight of evidence we have amassed, community views we have collated and the few powers we have left as a planning authority.

London Plan 2019

We finally have the inspectors’ report into the London Plan, together with their detailed recommendations.

I set out the peculiar legal framework that applies to the London Plan in my 23 April 2017 blog post Make No Little Plans: The London Plan. An additional peculiarity is that the Mayor of course does not have to accept the inspectors’ recommendations. If he does not intend to accept the recommendations, he has to send the Secretary of State a statement of his reasons (see regulation 9 of the The Town and Country Planning (London Spatial Development Strategy) Regulations 2000) and the Secretary of State has the power to direct that modifications to the plan be made “if it appears to the Secretary of State that it is expedient to do so for the purpose of avoiding (a) any inconsistency with current national policies …, or (b) any detriment to the interests of an area outside Greater London” (see section 337 of the Greater London Authority Act 1999).

London First’s Sarah Bevan, who played a crucial role at the examination, representing the interests of London First members, has prepared a good summary of the inspectors’ findings.

The inspectors conclude that subject to recommended modifications the plan meets the tests of soundness and provides an appropriate basis for the strategic planning of Greater London. However, some of the conclusions and recommended modifications will not have made welcome reading for the Mayor and his team, for instance in relation to:

Viability

The inspectors identify that the viability assessment work underpinning the plan is broadly acceptable but has shortcomings, particularly in relation to specialist housing for the elderly and purpose built student accommodation, and the assumptions about the redevelopment of sites with currently operating supermarkets. The inspectors are not persuaded that “these forms of development would be viable if they are required to meet all of the policy requirements in the Plan”. (paragraphs 80 and 81).

To be effective in London, the approach to viability at the planning application stage set out in current national policy and guidance will require consideration of the viability evidence supporting both the London Plan but also the relevant local plan. In other words, it is only where there is an up to date local plan in place supported by appropriate viability evidence, that we would expect full weight to be given to the assumption that planning applications that fully comply with all relevant development plan policies are viable.” (paragraph 24).

Small sites strategy realism and overall housing target

The inspectors recommend that the overall housing target should be reduced due to given that the target for what can be achieved from small sites is “aspirational” and “not realistic”. “In some cases the imposition of such large increases in this element of the target is heavy-handed and not helped by the lack of detailed engagement with the boroughs in deciding the small site capacity methodology. As some suggested a more nuanced approach might have borne fruit.” (paragraph 165).

Green belt

The inspectors’ “inescapable conclusion…that if London’s development needs are to be met in future then a review of the Green Belt should be undertaken to at least establish any potential for sustainable development. Therefore we recommend that this Plan include a commitment to a Green Belt review [PR35]. This would best be done as part of the next London Plan. Given its strategic nature and to ensure consistency the review should be led by the Mayor and should involve joint working with authorities around the administrative boundary as well as the boroughs. This would form the basis for the Mayor to consider Green Belt release as a means to deliver housing and industrial development that cannot be accommodated in the existing built up area or in adjoining areas.” (paragraph 457).

The inspectors also recommend amending the policies that preclude boroughs reviewing green belt boundaries applying the “exceptional circumstances” test and that seek refusal for development proposals that would cause harm to the green belt without reference to the “very special circumstances” test.

Airports, fracking

The inspectors identify policies, such as those in relation to Heathrow and other airports and in relation to fracking, which are inconsistent with national policy or in relation to which there is insufficient justification.

So what stance will the Mayor take towards these recommendations? There has been a certain scepticism on the part of many potential participants in the process, borne of what has happened with previous versions of the plan, that, no matter what the recommendations, those which are unpalatable to the Mayor will not be accepted.

Particularly with the Mayoral election process looming, it is perhaps unsurprising that this is how it may well play out. He has already come out with some pretty hostile comments, reported in a Guardian piece on 21 October 2019: Sadiq Khan to fight government attempt to water down green policies.

The prospects of a new adopted London plan before the 7 May 2020 Mayoral election appear to be fading fast, although it will be interesting to see the extent to which the existing ministerial team at MHCLG are prepared to stand up for the inspectors’ green belt approach.

The inspectors’ conclusions will also have implications for authorities outside London, in the rest of the south east, many of which are green belt authorities already failing to plan to meet local housing needs:

“If London cannot accommodate all of its development needs, the most significant strategic issue facing the wider South East for the coming decades will be how and where to accommodate that growth outside London in a way that will contribute towards achieving sustainable development. Many representors, with a wide variety of interests, have argued that this could and should be achieved. However, it is clear from past experience and evidence about increasing development pressures that areas in the wider South East outside London already face, that there are no easy solutions or clearly identified potential growth locations. Furthermore, it is apparent from the representatives from the South East England Councils, East of England Local Government Association and individual local authorities outside London that there is limited appetite to consider the possibility of accommodating significant amounts of additional development associated with the growth of London.” (paragraph 111)

Much as every politician tries to avoid the very subject, isn’t green belt the underlying theme of this entire blog post?

Simon Ricketts, 26 October 2019

Personal views, et cetera

Far Far Away: Slade Green SRFI

Two years after my 6 May 2017 blog post Slow Train Coming: Strategic Rail Freight Interchanges In The South East, progress remains slow.

I referred in my blog post to the ongoing saga of the Howbury Park (now known as Slade Green), strategic rail freight interchange scheme promoted initially by Prologis (who obtained a, now time expired, permission on appeal in 2007) and now by Roxhill.

The site straddles the boundaries of the London Borough of Bexley and Dartford Borough Council. (The effective boundary is the River Cray, with the elements of the scheme within Dartford’s administrative boundaries being an access road and bridge over the river). At the time of my blog post, Dartford had resolved to refused planning permission. Bexley had resolved to grant planning permission but the Mayor of London was considering whether to intervene.

The Mayor on 17 July 2017 directed Bexley to refuse the application, on this ground:

The proposal is inappropriate development in the Green Belt and very special circumstances have not been demonstrated which would clearly outweigh the harm to the Green Belt by reason of inappropriateness, and any other harm. The development is therefore contrary to Policy 7.16 of the adopted London Plan 2016 and the National Planning Policy Framework 2012.”

Dartford’s reasons for refusal additionally related to the likely effects of additional traffic on air quality and congestion detrimental to the quality of life of the community in Deptford.

Roxhill appealed. The appeals were recovered for the Secretary of State’s own determination on 7 November 2017 for the reason that they related to proposals for significant development in the Green Belt. An inquiry was held over 18 days between June and September 2018.

The Secretary of State issued his decision letter on 7 May 2019. He dismissed the appeals. He found that the scheme was not in accordance with the relevant development plans. “He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

25.In this case the Secretary of State considers that the harm to the Green Belt from inappropriate development carries substantial weight against the scheme and the effect on the character and appearance of the local area carries significant weight along with the adequacy of the proposed rail link and the effect on existing/future passenger rail services. Significant weight is also given to the effect on the convenience of highway users.

26.The Secretary of State considers that the provision of social economic benefits of the scheme has overall limited weight and the resulting net biodiversity gain has moderate weight.

27.The Secretary of State considers that the benefits of the scheme do not outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances do not exist. He considers that the adverse impacts of the proposal significantly and demonstrably outweigh the benefits. Overall, he considers that there are no material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

28.The Secretary of State therefore concludes that the appeal is dismissed, and planning permission is refused.”

In terms of the availability of alternative sites:

“18.The Secretary of State agrees with the Inspector that in the 2007 decision it was identified that there was no alternative development site, a finding which attracted considerable weight in favour of that scheme (IR4.2). However, since 2007 the London Gateway, a brownfield site not located in the Green Belt, has been developed. For the reasons given in IR15.8.18 to 15.8.24, the Secretary of State agrees with the Inspector’s conclusions that the London Gateway site has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal (IR15.8.26)

The Inspector’s conclusions, set out in section 15 of his report, are also worth delving into.

His findings ahead of his overall conclusions relied upon by the Secretary of State included the following:

The proposal would have a substantial adverse effect on the openness of the Green Belt and the introduction of this massive development beyond the built limits of Slade Green would constitute urban sprawl.”

[G]iven the requirement of the NPSNN [National Policy Statement on National Networks] that ‘as a minimum, a SRFI should be capable of handling 4 trains per day’, it follows that in order for the proposed rail link to be considered ‘adequate’, it would be necessary for it to be capable of accommodating 4 trains/day as a minimum…Based on the evidence presented, in my judgement, the number of trains that could be pathed to/from the appeals site, having regard to the current timetable, would be likely to fall well short of 4 per day (each way)

Unlike the circumstances in 2007, there is no longer a formally identified requirement for 3 or 4 SRFIs around London [4.2, 7.2.6, 8.5.1, 11.2.12, 11.2.14.f.]. The Government approach set out in the NPSNN is to support the realisation of the forecast growth by encouraging the development of an expanded network of large SRFIs across the regions [11.2.9]. Furthermore, ‘…SRFI capacity needs to be provided at a wide range of locations…There is a particular challenge in expanding rail freight interchanges serving London and the South East’. ”

Overall, I am content that there is a need and market for SRFIs to serve London and the South East [11.2.2-3]. I turn then to consider the extent to which the appeals scheme would be likely to meet the requirements of SRFIs set out in the NPSNN. ”

However, “the appeals scheme would not be well qualified to meet the identified need for SRFIs to serve London and the South East”

[T]he appellant’s ‘very special circumstances case’ included the assertion thatno alternative development options exist for SRFIs to serve this part of London and the South East…this represents a material consideration of very considerable weight’ ”

London Gateway, a brownfield site, has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal. Under these circumstances, even if the appeals scheme was also well qualified to meet that need, in my view, the weight attributable to this would be limited.”

Finally, the inspector also had significant concerns in relation to the traffic modelling that had been relied upon by the local authorities, including Transport for London and concluded that “the residual cumulative impact of the development on the local road network would be severe, with particular reference to congestion.

How uncertain, expensive and slow this process is. And how valuable it would be have been to have kept the 2007 Howbury Park permission alive.

Simon Ricketts, 11 May 2019

Personal views, et cetera

Green Belt Developments

This month’s green belt news: two Court of Appeal rulings, a Secretary of State decision letter and of course the draft revised NPPF.
Brown v London Borough of Ealing (Court of Appeal, 23 March 2018) was a judicial review of a local authority’s grant of planning permission for a first team training and academy facility for Queen’s Park Rangers, sports pitches, community facilities and associated development at Warren Farm Ealing, on metropolitan open land (where of course green belt policy tests apply).

One of the two grounds of challenge was “whether the officer’s conclusion, accepted by the committee, that “very special circumstances” existed to justify the grant of planning permission for “inappropriate development” on Metropolitan Open Land was bad in law“. 
Paragraph 88 of the current NPPF states:
When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless any potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”
Following Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government (Court of Appeal, 24 October 2014), it is well established that the expression “any other harm” does not just mean any other harm to the green belt but takes in non- green belt factors as well. The question for the court in Brown was whether the officer had taken this correctly on board. It was submitted by the claimant that the structure of the officer’s conclusions suggested that she had either excluded non green belt harm such as loss of public access or that she had double-counted by concluding that the proposed improvements to community facilities would balance out that harm, when she had already taken into account the same factor as part of the “very special circumstances” arising. The court disagreed. The report had to be interpreted “with reasonable benevolence and realism, and not in an overly legalistic way“. The officer had properly applied the approach that the Redhill judgment requires and on the double-counting point:

“In principle, it is possible for a particular factor to be relevant, and to carry appropriate weight, in the consideration of more than one planning issue. It may serve to avoid or overcome or, at least, outweigh some real or potential planning harm, and it may also satisfy some planning need that would otherwise go unmet”

“This was not, in any sense, “double-counting”. Rather, the officer’s conclusions point up the two-fold relevance of the improvement to recreational facilities at Warren Farm as a material consideration – to which appropriate weight had to be given in two respects, not merely in one. The officer was entitled to conclude, as a matter of planning judgment, that in the context of “Public Access”, given the availability of other publicly accessible open space nearby, the balance of relevant benefit – improved sports facilities for the local community – against disadvantage – the “loss” of public access for recreation – fell in favour of the development. I do not accept that this benefit was immaterial in that particular context; it was, I think, plainly a relevant consideration there. The officer was also entitled to conclude, again as a matter of planning judgment, that in the “very special circumstances” balance itself, the ability of the development to meet a need identified in development plan policy – the general need for investment in improved sports facilities, and specifically the need for such investment at Warren Farm – was a consideration to which weight should be given on the positive side of that balance. These conclusions were not in tension or conflict with each other. They were distinct from each other, but mutually consistent. They do not show a material consideration being given double weight, only a single factor being given due weight in two different respects: first, outweighing a “loss” that would be caused by the development itself; second, meeting an existing need that would not be satisfied without the development.”
Samuel Smith Old Brewery (Tadcaster) Limited v North Yorkshire CC (Court of Appeal, 16 March 2018) was the latest piece of litigation instigated by Yorkshire brewer and serial litigator Humphrey Smith. This time the target of Mr Smith’s attention was a planning permission granted for the extension of a limestone quarry in the green belt about a mile from Tadcaster. The claimant argued that the council had misapplied paragraph 90 of the NPPF, which states mineral extraction is not “inappropriate development” in the green belt if it preserves the openness of the green belt. 
The officer had approached the question of “openness” in this way:
“It is considered that the proposed development preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Openness is not defined, but it is commonly taken to be the absence of built development. Although the proposed development would be on existing agricultural land, it is considered that because the application site immediately abuts the existing operational quarry, it would not introduce development into this area of a scale considered to conflict with the aims of preserving the openness of the Green Belt.

In terms of whether the proposed development does not conflict with the purposes of including land within the Green Belt, the proposed quarrying operations are not considered to conflict with the purposes of including land within the Green Belt. Equally, it is not considered that the proposed development would undermine the objective of safeguarding the countryside from encroachment as it should be considered that the site is in conjunction with an operational quarry which will be restored. The proposed development is a temporary use of land and would also be restored upon completion of the mining operations through an agreed DRMP.

The purposes of including land within the Green Belt to prevent the merging of neighbouring towns and impacts upon historic towns are not relevant to this site as it is considered the site is adequately detached from the settlements of Stutton, Towton and Tadcaster. It is also important to note that the A64 road to the north severs the application site from Tadcaster.”
The court found that this was indeed a misinterpretation of paragraph 90:
“The concept of “the openness of the Green Belt” is not defined in paragraph 90. Nor is it defined elsewhere in the NPPF. But I agree with Sales L.J.’s observations in Turner to the effect that the concept of “openness” as it is used in both paragraph 89 and paragraph 90 must take its meaning from the specific context in which it falls to be applied under the policies in those two paragraphs. Different factors are capable of being relevant to the concept when it is applied to the particular facts of a case. Visual impact, as well as spatial impact, is, as Sales L.J. said, “implicitly part” of it. In a particular case there may or may not be other harmful visual effects apart from harm in visual terms to the openness of the Green Belt. And the absence of other harmful visual effects does not equate to an absence of visual harm to the openness of the Green Belt.

As a general proposition, however, it seems to me that the policy in paragraph 90 makes it necessary to consider whether the effect of a particular development on the openness of the Green Belt can properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question – the very fact of its being there – without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic. The policy in paragraph 90 does not do that. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.

The first part of the question posed by the preamble in paragraph 90 – whether the development would “preserve” the openness of the Green Belt – cannot mean that a proposal can only be regarded as “not inappropriate in Green Belt” if the openness of the Green Belt would be left entirely unchanged. It can only sensibly mean that the effects on openness must not be harmful – understanding the verb “preserve” in the sense of “keep … safe from harm” – rather than “maintain (a state of things)” (Shorter Oxford English Dictionary, 4th edn.). There may be cases in which a proposed development in the Green Belt will have no harmful visual effects on the openness of the Green Belt. Indeed, there may be cases in which development will have no, or no additional, effect on the openness of the Green Belt, either visual or spatial. A good example might be development of the kind envisaged in the fourth category of development referred to in paragraph 90 of the NPPF – “the re-use of buildings provided that the buildings are of permanent and substantial construction”. But development for “mineral extraction” in the Green Belt, the category of development with which we are concerned, will often have long-lasting visual effects on the openness of the Green Belt, which may be partly or wholly repaired in the restoration phase – or may not. Whether the visual effects of a particular project of mineral working would be such as to harm the openness of the Green Belt is, classically, a matter of planning judgment.

In my view, therefore, when the development under consideration is within one of the five categories in paragraph 90 and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would “preserve the openness of the Green Belt”. Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law.”
Or as Zack Simons summarised:

The planning permission was quashed.
Aside from these two Court of Appeal rulings, throwing light on paragraphs on paragraphs 88 and 90 of the NPPF respectively, it was also interesting to see this month the Secretary of State allow an appeal by Berkeley Homes (Southern) Limited and Howard Partnership Trust for substantial development in the green belt, comprising 258 homes and replacement secondary school in Effingham, Surrey. In his decision letter (21 March 2018) the Secretary of State’s findings included that:

– There is a need for additional school places in the area, “the existing school premises are not fit for the purpose of meeting modern educational and social need and that the replacement of the school in order to facilitate this carries very substantial weight“. Furthermore, “there are very significant issues with the fabric of the school and the ongoing funding of its repair and maintenance in the current budgetary context. He further agrees that in seeking to address condition as well as suitability and sufficiency, the least expensive option is the rebuilding of the school on the only other available identified site, and that these matters carry very substantial weight.”
– An Autism Centre “optimally located within the new complex to maximise its effectiveness for the students who will use it, … is a clear benefit of the scheme and to deepening the educational and community inclusivity of the school.”

– Guildford Borough Council only has a 2.1 year housing land supply. Against this the Secretary of State considered that the delivery of dwellings, 20% of which will be affordable, carries very substantial weight. 

He concluded that the benefits arising from the scheme “clearly outweigh harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist” for the purposes of paragraphs 87 and 88 of the NPPF. 
The inclusion of reference to the extent of unmet housing need in Guildford as part of the very special circumstances relied upon is encouraging, but the need to replace the school and provide more school places was a crucial component, given that the Government has indicated since 2013 that unmet housing need alone is not sufficient to amount to very special circumstances, a stance that is presently unlikely to change. Indeed, at the end of a House of Commons debate debate on 6 February 2018 on housing, planning and the green belt, there was this exchange between Dominic Raab and a backbench Conservative MP:

This was of course followed by publication on 5 March of the draft revised NPPF (NPPF 2.0 for hipster-planners). Has it made any difference to any of what I have set out above? Well, slightly:
– paragraph 88 is now paragraph 143 and after the words “any other harm” is added “resulting from the proposal“. This is an additional pointer towards the Court of Appeal’s wider interpretation of that phrase as per Redhill and now Brown. 
– paragraph 90 is now paragraph 145 with unchanged wording, although within paragraph 144 there is an important extra category of development that is not “inappropriate” and where “very special circumstances” therefore do not need to be shown”: “where the development would re-use previously developed land and contribute to meeting an identified local affordable housing need, not cause substantial harm to the openness of the Green Belt. ” – this “not cause substantial harm” is going to be the new battleground I’m sure. There is also a clarification of the previous statement that “the provision of appropriate facilities for outdoor sport, outdoor recreation” etc is not “inappropriate development”. The wording is now “the provision of appropriate facilities (in connection with the existing use of land or a change of use) for” those uses”, following the approach already adopted by the courts, eg in R (Timmins) v Gedling Borough Council (Court of Appeal, 22 January 2015).
The “exceptional circumstances” test for changing green belt boundaries in plans has been embellished (as flagged since the February 2017 housing white paper) by requiring that “the strategic plan-making authority should have examined fully all other reasonable options for meeting its identified need for development. This will be assessed through the examination of the plan, which will take into account the preceding paragraph, and whether the strategy; 

* a)  makes as much use as possible of suitable brownfield sites and underutilised land; 


* b)  optimises the density of development, including whether policies promote a significant uplift in minimum density standards in town and city centres, and other locations well served by public transport; and 


* c)  has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.”


“Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to land which has been previously-developed and/or is well-served by public transport. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.”

Will this embellishment raise the threshold materially for green belt release? I’m not sure that the additional criteria do anything more than articulate the matters that would be examined in any event. The removal of some brownfield proposals, which will not cause substantial harm to the openness of the green belt, from the definition of inappropriate development is on the other hand potentially significant (and surely wholly sensible). As for the constant flow of case law, it is certainly not going to dry up. 
Simon Ricketts, 30 March 2018
Personal views, et cetera

 

Local Plan Interventions

As set out in his 16 November 2017 written ministerial statement, the Secretary of State for Communities and Local Government has written to 15 local planning authorities (Basildon, Brentwood, Bolsover, Calderdale, Castle Point, Eastleigh, Liverpool, Mansfield, North East Derbyshire, Northumberland, Runnymede, St Albans, Thanet, Wirral and York), indicating that they have “the opportunity to put forward any exceptional circumstances, by 31 January 2018, which, in their view, justify their failure to produce a Local Plan under the 2004 Act regime.” He will then make a formal decision as to whether formally to intervene in their plan-making. 
His Bristol speech on the same day says this:

“…today is the day that my patience has run out.

Those 15 authorities have left me with no choice but to start the formal process of intervention that we set out in the white paper.

By failing to plan, they have failed the people they are meant to serve.

The people of this country who are crying out for good quality, well-planned housing in the right places, supported by the right infrastructure.

They deserve better, and by stepping in now I’m doing all I can to ensure that they receive it.”

Will this be another empty threat or this time will we actually see some action? Back 20 July 2015 the then minister for housing and planning, Brandon Lewis, announced in a written ministerial statement:

In cases where no Local Plan has been produced by early 2017 – five years after the publication of the NPPF – we will intervene to arrange for the Plan to be written, in consultation with local people, to accelerate production of a Local Plan.”

There was then the February 2016 technical consultation on implementation of planning changes which included within its chapter 6 the Government’s proposed criteria for intervention, namely where:

* the least progress in plan-making had been made;

* policies in plans had not been kept up to date;

* there was higher housing pressure; and

* intervention would have the greatest impact in accelerating local plan production.

Decisions on intervention would be informed by the wider planning context in each area (specifically, the extent to which authorities are working co-operatively to put strategic plans in place, and the potential impact that not having a plan has on neighbourhood planning activity).

The Government confirmed in its February 2017 housing white paper that these criteria would indeed be adopted. 

The February 2016 technical consultation proposed that authorities identified for potential intervention would be given an opportunity to set out exceptional circumstances why that should not happen:

“What constitutes an ‘exceptional circumstance’ cannot, by its very nature, be defined fully in advance, but we think it would be helpful to set out the general tests that will be applied in considering such cases. We propose these should be: 

• whether the issue significantly affects the reasonableness of the conclusions that can be drawn from the data and criteria used to inform decisions on intervention; 

• whether the issue had a significant impact on the authority’s ability to produce a local plan, for reasons that were entirely beyond its control.”

We can assume that those 15 authorities will now be looking very carefully at this passage. 

A political decision to intervene is one thing but what would then be the legal process to be followed?

The Housing and Planning Act 2016 amended the default powers of the Secretary of State within section 27 of the Planning and Compulsory Purchase Act 2004, so that it read as follows:

Under section 9 of the Neighbourhood Planning Act 2017, the Secretary of State can now also order the preparation of joint development plans, giving him a further option in the case of interventions, particularly as he “may apportion liability for the expenditure arising on such basis as he thinks just between the local planning authorities for whom the document has been prepared.”
Of course the practicalities are quite another thing. How is the Government actually going to go about the intervention process? Preparing the document centrally, directing an adjoining authority to take the lead or parachuting in civil servants or consultants to carry out the work (all at the cost of the authority) is surely always going to be a last resort. The process is likely to be locally unpopular, prone to error and obviously liable to litigation. Authorities may also trip over themselves in their belated haste. However, surely after the end of January a few authorities are bound to be identified, pour encourager les autres. 
So how have these authorities found themselves in this position? Here’s just a flavour:
Basildon
Yellow Advertiser (20 April 2017):

“Tory chief Phil Turner has suggested calling in independent analysts to go over the plan, which allocates land for development across the borough until 2034. 

Cllr Turner said he hoped to ask experts to go over the plan’s policies on green belt and infrastructure. 

He said he hoped the move would help him cut the number of planned houses in the borough, which currently sits at 15,260.

He said: “We can’t review the whole plan but those two points are areas where we think there may be opportunities about reducing our housing numbers. 

“During the consultations, we’ve had a lot of feedback about how people don’t think we are working hard enough to to save the green belt. We don’t want to build on the green belt and we have avoided it as much as possible but I don’t think the public actually believes us.

“So what we are thinking is we should call in some independent people to scrutinise the plan and tell us where we can maybe use the evidence to put up an argument to challenge the housing numbers.”

Cllr Turner was due to present the proposal to all councillors in a secret meeting last night. 

If approved, he said the process could cost a six-figure sum and take up to six months.

Brentwood
Largely green belt authority. Prolonged delays.  

Bolsover

Local Plan withdrawn after it failed examination in 2014. Failure to co-operate with North East Derbyshire District Council and Chesterfield Borough Council with regard to a strategic development site. 
Calderdale

Brighouse Echo (17 November 2017):

 “Councillor Scott Benton, Leader of the Calderdale Conservatives, said: “‘The draft Local Plan published by the Labour Council administration has caused great concern throughout the different communities of Calderdale.

“The Labour Party have clearly been taken aback by the scale of the opposition to their plans and instead of meeting their target of producing a Final Plan in December, they have announced that they are now kicking the issue down the road again until after the elections next summer.

“‘Labour’s first attempt at producing a draft Plan was a disaster. Instead of working with residents and other Councillors to produce a Plan that is fit for purpose they have delayed the process until after elections. This makes a mockery of our local democracy and demonstrates why Calderdale requires fresh leadership.”

Castle Point

Local Plan failed examination in April 2017 – failure adequately to assess housing need, and failure to cooperate with neighbouring councils.
Eastleigh
Eastleigh News (16 November 2017):
“In February 2015, Eastleigh had to go back to the drawing board after its first Local Plan was rejected by the planning inspector because, he said, it didn’t plan for enough new homes – in particular new affordable ones.

On December 11 the council will meet for a crunch vote on their new Local Plan and the council’s preferred options of housing development on land North of Bishopstoke and Fair Oak (Options B and C).

There has been fierce local opposition – not just from the residents most likely to be affected by the development of 5,000 new homes but also from residents close to the route of a proposed M3 link road that will stretch across countryside from Upham to Allbrook.

So far this year three councillors have stood down from the ruling Liberal Democrat group to sit as Independents because of their concerns over the direction of the local plan.

It is likely they will join the opposition Conservative group on December 11 in voting against the council’s favoured options – though this is unlikely to prevent their adoption.”

Liverpool
Prolonged delays. 
 Mansfield

Mansfield 103.2 (17 November 2017):

Hayley Barsby, Interim Chief Executive at Mansfield District Council, said: “We are disappointed to have been named as one of the 15 local authorities.

“We are confident that while we don’t have an up-to-date Local Plan that this hasn’t affected development in the district.

“Mansfield District Council is committed to bringing forward house building – this is demonstrated by the council supporting the Berry Hill development (formerly known as the Lindhurst development) which will create 1,700 new houses for the district.

“Of the 9,024 new homes we need to provide by 2033, planning permission already exists for 4,147.

“Over the past 12 months we have worked hard to bring forward the Local Plan and during this time we have been mindful to undertake feasibility and consultation to ensure it reflects not only the needs of the district but also the views of our communities.

Following an initial consultation in early 2016 on the draft Local Plan, we received 1,477 comments which were then reviewed to ensure the plan is fit for purpose up to 2033.

The council reviewed its position and prepared a new vision and objectives. These have been used to create alternative options for the delivery of sustainable housing and employment to meet future requirements. 

A Preferred Options consultation took place in October and November 2017.”

North East Derbyshire
Derbyshire Times (18 October 2017) quotes the Labour leader of the council in response to criticisms from the local (Conservative) MP:
“We are well aware of the need to protect the character of our area and have done all we can to do this, however the Government’s expectations and targets for housing place significant pressure on our ability to continue this.” 

He added: “As such we’d welcome any moves by the MP to seek a revision to Government policy so that the expectations for north east Derbyshire are realistic and in keeping with those of our residents.”
Northumberland

Northumberland Gazette (16 November 2017):

 “Northumberland’s Local Plan, a key document which details where development should take place, is not likely to be adopted until 2020. In the summer, the county council’s new Conservative administration withdrew the Local Plan Core Strategy – put together by the council’s Labour group before losing the county election in May – to review a number of aspects of the document, primarily due to concerns that numbers for the proposed level of new housing were too high.”

Runnymede
Local plan failed examination in 2014 due to failure to meet housing needs and failure of duty to co-operate. 
 St Albans

Local Plan failed examination in 2016 due to failure of duty to co-operate, council’s subsequent challenge to that decision failed.
Thanet

Prolonged delays but Regulation 19 consultation anticipated in January 2018. 
 Wirral

Wirral Globe (16 February 2017):

Wirral Council’s leader is preparing for battle with Whitehall over plans that could force the authority to turn green belt land into a housebuilding free for all.

The Government has ruled Wirral must produce a blueprint demonstrating how it will hit a target of building nearly 1,000 new homes each year over the next five years.

That’s 500 more than the present annual number.

Councillor Phil Davies says he is adamant that he will not sanction the release of green belt land – and has written to communities secretary Sajid Javid urging him to reconsider.”

York
Prolonged delays. 
York Press (16 November 2017):
City of York Council’s Conservative and Liberal Democrat leaders have pointed to delays caused by the announcement of barracks closures in York, and insisted they are on course to deliver a sound plan by May.

Leader Cllr David Carr said: “We’re making very good progress to deliver a Local Plan which is right for York – one which provides the homes and employment opportunities we need while protecting our city’s greenbelt and special character.

“We rightly reviewed the plan after the Ministry of Defence’s announcement over the future of three very large sites, and consulted once again listen to views from across York.”

However the announcement has brought criticism from Labour councillors, who say they warned this could happen.”
Themes
Tell me if I am over-simplifying but it seems to me that there are some common, unsurprising, themes within this list:
– Uncertainties as to the calculation of objectively assessed needs and the extent to which authorities can justify not meeting that need to due to green belt issues (nearly all these authorities have areas of green belt within their boundaries). 
– Uncertainties as to the extent to which it may be appropriate for authorities to assist in meeting other authorities’ needs, the duty to co-operate being far too loose a mechanism (which is not necessarily to suggest that a return to regional planning and “top down” numbers is the answer – these are authorities who didn’t manage to adopt a plan even under that regime, which of course had built into it inherent delays at the regional tier). 

– As a result of this wriggle room, housing numbers becoming a political battleground, with members often not accepting officers’ advice or with changes in approach arising from changes in political control. 

– Delays due to plans having been found unsound at the end of, or a long way into, a long process (usually as a result of these factors). 

– Plainly, these authorities haven’t been sufficiently spurred on by the application of the “tilted balance” leading to development taking place in unplanned, unwanted locations – perhaps due to that policy lever being less effective in relation to green belt – or other Government threats to date. 

– Many of the authorities being, on paper at least (their websites tell a good story to their constituents), now close to being able to submit a plan for examination, after (usually) a series of Regulation 18 consultation processes. 

Is slow plan-making the fault of local politicians or of the planning system itself? I would say both. The lack of prescription as to numbers and methodology has inevitably given room for protracted, unending, debate as to different approaches and outcomes. Debate and local choice is surely to be welcomed but the system has been so loose that in some areas this has slowed progress to an extent that anyone would surely say was unacceptable. Accordingly, the proposed tightening of the OAN methodology (see my 20 September 2017 blog post) and of the duty to co-operate is surely welcome, as is this clear threat by Javid of intervention. 

However, if formal intervention is actually required, the outcome will surely be a political, administrative and legal mess. 
…………………..

Meanwhile, it is perhaps unfortunate timing that in the same week the Secretary of State has made a holding direction in relation to the Stevenage local plan, at the request of local Conservative MP Stephen McPartland, despite a favourable Inspector’s report having been received last month. The issue appears to result from a continuing fault line both in Stevenage and more widely: whether to provide homes by way of town centre redevelopment (as per the plan) or outside the town in a new settlement (as per Mr McPartland). 

Whatever the rights and wrongs of the Stevenage position, why allow such political interventions if the plan has been found sound?
Simon Ricketts, 18 November 2017
Personal views, et cetera

(With thanks to Town Legal colleague Rebecca Craig for some background research. Mistakes and opinions all mine). 

Green Belt Policy: Will It Change?

In all the noise and spin ahead of the Autumn budget on 22 November, I would be wary of reading anything substantive into stories such as these:
Telegraph 4 November 2017 Philip Hammond risks Tory backlash with gamble on opening up the green belt 

Times 30 October 2017 Hammond rebuffed over budget plan for green belt housing
 I don’t believe that there will be anything to change the current policy direction. This Government surely does not have the strength, the resolve or the thinking space. The existing tests in the NPPF for reviewing green belt boundaries and for determining applications for planning permission in the green belt will be retained, with the minor changes that have previously been announced. In my view the real action isn’t around what the policies say, but how they are applied. 

Local plans
At present, green belt boundaries may be reviewed as part of local plan processes. Established green belt boundaries should only be changed in “exceptional circumstances”. Boundaries are intended to be long term, capable of enduring beyond the plan period. 
The Government’s February 2017 Housing White Paper proposes, at paragraph 1.39, embellishing that “exceptional circumstances” test:
“Therefore we propose to amend and add to national policy to make clear that: 

* authorities should amend Green Belt boundaries only when they can demonstrate that they have examined fully all other reasonable options for meeting their identified development requirements, including: 

    * making effective use of suitable brownfield sites and the opportunities offered by estate regeneration; 


    * the potential offered by land which is currently underused, including surplus public sector land where appropriate; 


    * optimising the proposed density of development; and 


    * exploring whether other authorities can help to meet some of the identified development requirement.”


* and where land is removed from the Green Belt, local policies should require the impact to be offset by compensatory improvements to the environmental quality or accessibility of remaining Green Belt land. We will also explore whether higher contributions can be collected from development as a consequence of land being released from the Green Belt. ”

Wording along these lines is likely to be added to the draft revised NPPF, promised early in 2018, but will make no material difference in practice – the additional guidance may look like tough talk but is largely a statement of the present position. 
Statistics can be used in various ways. At one end of the spectrum there is concerted lobbying by CPRE (see for instance their paper Green Belt Under Siege 2017). But the Government’s own figures DCLG statistical release Local Planning Authority Green Belt: England 2016/17 7 September 2017 sets the issue in context:
Overall there was a decrease of 790 hectares (less than 0.05%) in the area of Green Belt between 31 March 2016 and 31 March 2017. In 2016/17, eight local planning authorities adopted new plans which resulted in a decrease in the overall area of Green Belt compared to 31 March 2016.”


Regardless of how “exceptional circumstances” are defined, it is presently too easy either for local planning authorities to delay their plan making or to seek to justify not meeting their objectively assessed housing needs on the basis of green belt constraints. Threats of intervention on the part of the DCLG have come to nothing and the duty to cooperate (even when elevated to a duty to provide statements of common ground) is still too far too uncertain as to its effect, allowing local politicians to justify to themselves not assisting with adjoining authorities’ unmet requirements. Furthermore, the Government’s previous politically driven interventions such as in delaying for some time the Birmingham Development Plan at the request of local Conservative MP Andrew Mitchell hardly promote a positive approach. 
The problem isn’t so much specifically about green belt policy but more generally about how effectively to penalising authorities that do not properly plan – and surely about how positively to encourage authorities on every local plan review to consider whether boundaries should be reviewed – possibly even ahead of looking outside their boundaries where adjoining authorities are not readily in a position to pick up their unmet needs? The prolonged delays to plan making in green belt areas such as parts of Hertfordshire and Bedfordshire are a serious indictment of the present system. 
If the imminent draft London Plan as expected fails to encourage the boroughs to review their green belt boundaries, will that not be an opportunity missed? By all means require exceptional circumstances, but rigid adherence to the status quo for political reasons has social, environmental and economic costs. 

(map from LSE paper A 21st Century Metropolitan Green Belt 2016)

Planning applications and appeals
Green belt designation has never been an absolute bar to development. There are two main routes to consent:
First, is the proposal not “inappropriate development” within the meaning of paragraph 89 and 90 of the NPPF? For residential and commercial development the most main potential exemptions are:
* “the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

* the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces; 


* limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; 


* limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

Secondly, even if the proposal is for “inappropriate development”, can the applicant demonstrate “very special circumstances”? The guidance is unspecific as to what will amount to very special circumstances: “Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” The balancing of considerations is left to the decision maker. 

By way of recent example, the Secretary of State allowed an appeal on 1 November 2017 for a proposed development by Oaklands College and Taylor Wimpey comprising “new and refurbished college buildings, enabling residential development of 348 dwellings, car parking, associated access and landscaping.” His decision letter concluded as follows:
“35. The Secretary of State agrees with the Inspector (IR 248) that the proposal is inappropriate development in the Green Belt, which is harmful by definition. He further agrees there would be additional harm by reason of a reduction in openness and by virtue of encroachment into the countryside. Therefore he attributes substantial weight to the harm to the Green Belt caused by the proposed development. 

36. The Secretary of State agrees with the Inspector that there would be some limited harm to the character and appearance of the area (IR249) and he gives limited weight to this harm. 

37. The Secretary of State agrees with the Inspector that the delivery of significant improvements to the College weighs very heavily in favour of the proposal (IR 251). The Secretary of State gives the educational benefits significant weight in favour of the proposal. He also agrees with the Inspector that in light of the lack of a five year housing land supply, the proposed market and affordable housing is a significant benefit (IR 252) that carries significant weight in favour of the proposal. Additionally, the Secretary of State agrees that the enhancement of beneficial Green Belt uses carry moderate weight in favour of the proposal. The Secretary of State gives limited weight to improvements to the non- designated heritage assets (IR 253). 

38. The Secretary of State shares the Inspector’s view that the effect on protected trees in Beaumont Wood, the relationship with the policies related to the Watling Chase Community Forest, and the effect on traffic and flooding in the Sandpit Lane area are neutral factors in the planning balance (IR 254). 
39. Overall, the Secretary of State agrees with the Inspector that the considerations summarised above clearly outweigh the harm to the Green Belt, justifying the proposal on the basis of very special circumstances (IR 255). He therefore concludes that relevant policies relating to development in the Green Belt do not indicate that the proposed development should be restricted. The Secretary of State also concludes that the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits.

40. Overall, the Secretary of State agrees with the Inspector that there are persuasive material considerations which warrant a decision other than in accordance with the development plan (IR255).”
The application of the NPPF’s tests in relation to plan making and decision taking inevitably gives rise to disputes both as to interpretation (see the many court rulings listed by Landmark Chambers in relation to each of the relevant paragraphs of the NPPF) and as to the weight to be applied to the various material considerations (meaning unpredictability, together with many speculative applications). But with even greater inflexibility (after all the policy hurdles are already extremely high) there would be another set of problems. 

Any politician is going to be cautious about a major policy shift. It is an open question as to whether the public understands the policy basis for green belt – the way in which, often vast, swathes of land around our cities have been identified as an ad hoc series of urban containment zones:
“- to check the unrestricted sprawl of large built-up areas;

– to prevent neighbouring towns merging into one another; 


– to assist in safeguarding the countryside from encroachment; 


– to preserve the setting and special character of historic towns; and 


– to assist in urban regeneration, by encouraging the recycling of derelict and other urban land

However, free market solutions advocated by the likes of the IEA and the Adam Smith Institute are wide of the mark. The idea of the green belt, albeit largely abstract, albeit largely restrictive and not driven by specific landscape, environmental or conservation attributions, has captured the public imagination like no other planning invention – perhaps, in a very British way, because it simply carries the expectation of being left alone. The challenge is how, without watering down existing green belt principles, to prevent the designation being used for local political purposes as an argument that increases inequality, renders housing unaffordable, increases commuting distances and drives urban development to unacceptable densities or sensitive non green belt locations? 
In the same way as in its early years the objective of green belt designation moved away from providing open space for recreation and towards a more restrictive role, over time can it move again towards a positive role more closely aligned with other landscape, land use or nature conservation designations?
Another eighty years or so should crack it. 
Simon Ricketts, 11 November 2017
Personal views, et cetera