Judicial Review on Green Belt Housing

Where there was no up to date development plan against which an application for Green Belt development could be assessed the presumption in favour of sustainable development required that planning permission be granted unless the policy within the National Planning Policy Framework (“NPPF”) concerning the Green Belt indicated that development should be restricted. Inappropriate development within the Green Belt is in effect prohibited except in “very special circumstances”.

In Hunston Properties Ltd v Secretary of State for Communities and Local Government [2013] it was common ground between the parties that the Scheme was “… inappropriate development…” which should not be approved unless HPL could satisfy the Planning Inspector on Appeal that very special circumstances existed, which clearly outweighed the substantial weight that is required to be given to harm to the Green Belt.

The Council contended that the proposed development and its scale represented inappropriate development for which there weren’t the “very special circumstances” necessary to warrant development in the Green Belt.

HPL appealed and the Inspector dismissed the appeal for the reasons that both the proposed residential development and the proposed care home would be inappropriate development in the Green Belt for the purposes of National and Local Policy

Before the Inspector, HPL’s case had been that there was independent and objective evidence of annual and projected housing need for St Albans of 688 households per annum for the period 2011-2028. The Inspector rejected this submission and concluded that the appropriate housing target was 360 dwellings per annum. Since that could be accommodated on the sites identified by the Council it followed that there was no identified unmet need.

There was an emerging strategic local plan being developed by the Council but it carried no weight for the purpose of making planning decisions as it was suspended by a series of resolutions passed by the Council on 28 November 2012. This left a “policy vacuum” which the Council’s cabinet sought to fill by passing a resolution adopting a housing target of 360 dwellings per annum. In fact this in no way filled the policy vacuum as it satisfied none of the requirements of a strategic local plan that complied with the NPPF and in any event was not passed by the Council.

HPL’s case was that the Inspector had misconstrued and misapplied the relevant parts of the NPPF. The decision based on an annual housing target of 360 dwellings was fatally flawed.

The High Court ruled that the Inspector should have:

1. assessed need and then identified to what extent that need would remain unfulfilled by the supply of specific deliverable sites over the planning period; and

2. decide whether fulfilling the need, and any other supporting factors, taken together clearly outweighed the identified harm to the Green Belt that would be caused by the proposed development.

Those matters were of planning judgment for an inspector and not the Court.

The Inspector had not applied this process in arriving at this decision and had instead relied on old figures adopted by the Council Committee so her decision was quashed.

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