Local Plan Breaking

Computer analogies about the planning system used to be all the vogue. Remember open-source planning anyone, and all that talk of rebooting? Sadly, the phrase “spinning wheel of death” now comes to mind in relation to so many local plan processes up and down the country, particularly in green belt authority areas.

The chief planner’s letter to chief planning officers published on 11 February 2022 said this:

We will be providing a further update on our approach to changes in the planning system in the Spring. This will provide further detail on how we will take forward measures to create a modernised and effective planning system that empowers communities to support, and local authorities to deliver, the beautiful, environmentally-friendly development this country needs.

Whilst we understand that many colleagues in local government are looking forward to further detail on the precise details of our changes to planning, I would like to take this opportunity to encourage local authorities to continue work to ensure they have an up-to-date local plan in place in a timely manner.”

Surely something more than words of encouragement to local plan making authorities is needed in the face of what is now a growing systemic issue (thank you to my colleague Stephanie Bruce-Smith for the list, media links and quotes):

Basildon Council resolved on 10 February 2022 to withdraw its plan, two years into an examination in public:

“Committee papers released prior to the full council meeting last night said the motion to withdraw the plan was “based upon, in part, to the current Conservative Administration views and beliefs in placing a greater emphasis on protecting the Greenbelt for current and future generations than the previous administration.”

Welwyn Hatfield Borough Council resolved on 27 January 2022 to seek to take a different stance to that of the inspector of its local plan, voting down proposed modifications that would have achived the inspector’s required 15,200 homes in favour of a reduced number of 13,279:

The Leader of the Council said the administration was “stuck between a rock and a hard place” [after backing plan to fight inspector on housing targets], but presented a “viable alternative” which involved less building on the green belt.”

• Hertsmere Borough Council resolved on 26 January 2022 to abandon its draft plan:

Cllr Bright acknowledged the decision meant the council was unlikely to meet [the 2023 deadline], but said, “this potential decimation of large swathes of the Green Belt has been too much for local people and local councillors to accept”.

Mid Sussex District Council resolved on 21 January to delay work on its draft plan:

“The scrutiny committee voted in favour of a motion to discuss the district plan review so that “further work and consideration can take place and the outcome of any change in government policy can be known”, the committee’s chairman said.”

Ashfield District Council resolved in November 2021 to pause work on its emerging plan:

“Coun Matthew Relf (Ash Ind), cabinet member for place, planning and economic regeneration on the district council, said: […]

Now Michael Gove has stated that the very assumptions we were forced to use are out of date and all Government housing policy is being looked at.

To that end, we will pause the local plan timetable until we get greater clarity.

Arun District Council resolved on 6 October 2021 to pause work on its emerging plan:

At an Arun District Council planning policy committee on Wednesday (October 6), members voted to put the work on hold [and look again in 6 months’ time].

This was in light of proposed reforms to the planning system as a result of the government’s white paper ‘Planning for the Future’ and the upcoming Planning Bill.

You may know of other examples. The draft Royal Borough of Windsor and Maidenhead plan of course only squeaked through 22 – 17 on 8 February 2022:

Cllr Coppinger said it was “the most important paper” he has brought to the council, adding the borough is “desperate” for affordable family housing.

He warned if the local plan is not adopted, government would ‘force’ the council to adopt it as all local authorities must have an updated plan in place.”

We wait to see what consequences, if any, await those authorities which have decided to take a “wait and see” approach, rather than proceed with green belt release.

The Secretary of State has powers to intervene (see my 18 November 2017 blog post Local Plan Interventions) but Joanna Averley’s “encourage” wording seems some way short of that…yet (contrast with this week’s designation of Uttlesford District Council for “not adequately performing their function of determining applications for planning permission for major development”, meaning that applications for planning permission for major development may now be made direct to the Planning Inspectorate). Much of this is all of course the entirely foreseeable consequence of the ongoing uncertainty as to what reforms to the planning system will now be made. We look forward to the Spring, in so many ways.

As a half-term holiday treat, there will be no clubhouse session this week, although recent events are available on replay on the Planning Law Unplanned club page. Spencer Tewis-Allen is planning a “build to rent” themed discussion for 22 February 2022.

Simon Ricketts, 12 February 2022

Personal views, et cetera

MAD World: Mapped Appeal Decisions

We launched Mapped Appeal Decisions today.

It’s a click-through interactive map that seeks to show the location of every planning appeal decision in England made between 1 January 2017 and 12 December 2021 following a public inquiry, with links to the relevant decision letter. Best viewed on a proper screen!

The data is drawn from our weekly Town Library planning appeal decisions updates over the period (free subscription still available via the link) and for all this work we at Town Legal are very grateful both to the Planning Inspectorate for the information publicly available on its website, which makes these sorts of applications possible, to OpenStreetMap for the base mapping and of course to our friends Simmons Wavelength for the legal engineering (in particular Joy Bradley for pitching the initial idea to me last year).

Any feedback would be very helpful. So far the extent of Green Belt across the country is shown on the map base but of course the possibilities are almost limitless.

Health warning: there are some decision letters where a postcode is not shown for the relevant site – they are not currently shown on the map. If you spot any other glitches do let me know.

Feel free to share the link or indeed this post with colleagues.

The only other thing I am going to mention in this week’s very short blog post is, as always, clubhouse Planning Law Unplanned. This Tuesday, 18 January at 6pm, the subject is SECRET WORLD OF BARRISTERS’ CHAMBERS, with as our guests, Paul Coveney (senior clerk, Francis Taylor Building), Marie Sparkes (head of business development and marketing, Keating Chambers), Gary Smith (chief clerk, Kings Chambers) and Mike Gooch (senior practice manager, Landmark Chambers). Everything you ever wanted to know but never dared to ask…

A link to the clubhouse app and event is here.

Simon Ricketts, 14 January 2022

Personal views, et cetera

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