Local plan offended NPPF and exceptional test for redefining Green Belt

Where land is in Green Belt any application for planning permission for housing would almost inevitably be refused, as inappropriate in Green Belt unless there are “very special circumstances” that warrant such development there.

In the High Court case of Gallagher Homes Ltd & Anor v Solihull Metropolitan Borough Council [2014] the Claimants had two sites in Solihull, (“the Sites”), which they wished to put housing on. But the Defendant local planning authority (“the Council”) adopted the Solihull Local Plan (“the SLP”) which put the Sites in Green Belt.

The Claimant applied under section 113(3) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”), to establish that the Council had acted unlawfully in adopting the SLP, and its allocation of the Sites to Green Belt, on three grounds which included:

Ground 1: The adopted plan was not supported by a figure for objectively assessed housing need, inconsistently with the requirements to (i) have regard to national policies issued by the Secretary of State (section 19(2)(a) of the 2004 Act), and (ii) to adopt a sound plan (sections 20 and 23 of the 2004 Act).

The Council had sought to justify its housing provision figure of 11,000 by what it described as a “bottom up” approach, i.e. it began with available housing supply. However that clearly fell very far short of the approach advocated and required by the National Planning Policy Framework (“the NPPF”), which involved starting with housing need and requiring justification for any requirement falling short of full and objectively assessed need. The “bottom-up” approach appeared to start with the number of homes that, in the light of relevant policies, could be delivered during the period. That was the wrong way round.

When the case had gone to appeal, the Inspector had been required to assess, fully and objectively, the housing need in the area. He made no attempt to do so. Neither the SLP nor the Inspector provided any full and objective assessment of housing need, as required by the NPPF, before considering constraints on meeting that need.

As was the practice under the pre-NPPF regime, they went straight to policy on figures for the region in a conventional planning balancing exercise, with all material factors in play, and then proceeded to carve up that policy on requirement between the various areas within the region.

That did not comply with the NPPF requirements.

Contrary to the NPPF, for the Inspector, the issue of housing need had not been a driver – in terms of the housing requirement target – it had, at best, been a back-seat passenger. So the Inspector’s approach to the policy requirements of the NPPF in relation to housing provision was neither correct nor lawful.

So the SLP with the modifications that the Inspector endorsed and the Council adopted, was unsound because it was not based on a strategy which sought to meet objectively assessed development requirements nor was it consistent with the NPPF.

Ground 2: The adopted plan paid no regard to the test for revising Green Belt boundaries in national policy, inconsistently with the requirements to have regard to national policies and adopt a sound plan.

The Sites had previously been white, unallocated land. The Court found that the Inspector had taken the wrong approach to the proposed revision of the Green Belt boundary to include them. He had simply balanced the various current policy factors, and, using his planning judgement, concluded it was unlikely that either of the two Sites would be found suitable for development, under current policies.

That, might be so, but what the Inspector had applied fell very far short of the stringent test of “exceptional circumstances” that any revision of the Green Belt boundary must satisfy.

Nothing in this case suggested that any of the assumptions upon which the Green Belt boundary had been set had proved unfounded, nor had anything occurred since the Green Belt boundary was set that might have justified the boundary being redefined.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.