Will the Hunston St Albans Green Belt Case Create an Appeals Loophole?
CONTROVERSIAL plans for construction of 116 new homes and a 72-bed care home in the Green Belt near St Albans have been put back on track by a top judge.The ambitious proposals for a greenfield site off Harpenden Road, Sewell Park, close to school playing fields and St Albans Girls School, were thwarted when St Albans City and District Council refused planning permission.
That decision was later upheld by a Government planning inspector who found that developers, Hunston Properties Limited, had failed to show the “very special circumstances” needed to justify inappropriate development of the Green Belt.
However, Judge Mark Pelling QC, sitting at Manchester High Court, today ruled the inspector made a “fundamental” legal error and directed the Department of Communities and Local Government to look again at the plans.
The judge said the inspector was “wrong in law” to base her assessment of the projected need for new housing in the area on a revoked planning policy and had misconstrued and misapplied the Government’s national planning policy framework.
Hunston insists there is evidence that 688 new homes will have to be built in the St Albans area every year until 2028 to meet unmet housing demand. The company says that the council faces a shortfall of more than 1,400 new homes over the next five years.
It argues that, in the absence of a strategic local plan for the area, central Government projections are the best evidence of real unmet housing demand and that the need for new homes ‘clearly outweighed’ Green Belt objections.
However, in rejecting the proposals, the inspector had accepted council arguments that only 360 new homes needed to be built annually and that target could be met by sites which had already been allocated for residential development.
The inspector said Hunston’s plans would “erode the openness of the area” and “cause irrevocable harm to the character and appearance” of the green field site.
Overturning the inspector’s decision, however, Judge Pelling said her assessment of projected unmet demand for new housing in the area had been based on a regional spacial strategy for the East of England that had been revoked in January this year.
He added: “The Green Belt Policy is not an outright prohibition on development in the Green Belt. Rather it is a prohibition on inappropriate development in the absence of very special circumstances.”
The inspector’s error was “fundamental” and required a full reconsideration of Hunston’s planning appeal, the judge concluded.
This case will have to be reheard but since then we have had the Thuindersley appeal where the SoS has affirmed the principle that major changes should happen with the local plan process and not through appeals. In that case however the SoS found that the local plan (Castlepoint) was at last making progress with a resolution in advance of submission of what Green Belt sites to release. The problem with St Albans is it has the most out of date plan, after York, in the country, and an earlier case at Flyde district which has the third most out of date plan the SoS determined that in those circumstances housing need did indicate very special circumstances. The problem is the Thundersely decision is worded carefully based on the facts of the case, which still hasn’t prevented a JR, but foolishly the DCLG, Number 10 and PINS (uinder instruction) have been stating it as a precedent even though policy hast changed. Indeed Pickles has approved several Green Belt travellers appeals, such as at Chertsely, on VSC grounds since the statements on Green Belt Travellers sites and the Thundersely decision. So clearly in the right circusmtances housing need can be a very special circumstance.
The problem for Pickles and local planning authority is the caselaw on this (the Tesco test) states you cant be abolsute, you need to doa balencing exercise, hard to the green belt and other harm against benefits, which implies in some cases the scale of housing need and remoteness of an LPA pulling its finger out on identifying housing sites must mean that Policy is still as stated in the NPPF, major changes should be made in a local plan showing exceptional circumstances unless the different very special circumstances test is met on a planning application. So the SoS is on tricky ground, if St Albans dont pull their finger out and say where PP would be grated in the next few months then if the SoS refused the scheme he would be accused of condoning its notoriously slow local plan process which has only since cllrs rightly rejected (on my advice) an unsound plan from being submiitted a few months ago got back on track. So wtach this space and also watch the Thundersely JR.
Here is the Balli Law link.
The Inspector …summarized the effect of Paragraph 14 of the NPPF before turning to the resolution passed by the Council’s Cabinet on 17 January 2013, which she described in these terms:
“26. The Council meeting of 17 January 2013 resolved that the RSS target of 360 dwellings per annum from 2001 to 2021 was the most appropriate interim housing target/requirement for housing land supply purposes. This figure was found sound by the Panel which considered the RSS on an evidence base that included significantly higher populations and household projections. The level of provision required in RSS policy H1 was justified by the specific circumstances of the District, having regard to previous Government advice in Planning Policy Guidance and Planning Policy Statements and did not simply apply Government population and household projection figures. RSS policy H1 requirement took account of the constraints to development in the District striking a balance of the social, economic and environmental objectives with the aim of achieving sustainable development. The balance was evidence based, consulted upon, subject to a sustainability appraisal, justified and publically examined. In reaching the housing requirement, the supporting text made it clear that full provision is not made for all needs irrespective of constraint.”
- A number of important points emerge from this paragraph. Firstly the Inspector referred to the decision of the Cabinet as being a decision of the Council. The Claimant maintains that this was a material error because there was a profound difference between a resolution passed by the Cabinet and one passed by the Council in a formal meeting, particularly where that resolution in part at least contradicted a resolution that had been passed by the full Council. The Defendants maintain that this was a mere error of nomenclature that is entirely immaterial particularly when occurring in the context of a planning inspector’s report.
i) That the 360 figure adopted by the Cabinet was derived from the old and revoked EEP;
ii) The figure could only be regarded as “sound” applying the policies contained in or which applied to the EEP;
iii) Policy H1 led to a requirement figure that took account of and therefore was net of the effect of various constraints as required by Policy H1 of the Regional Spatial Strategy; and
iv) In consequence, the EEP housing requirement figure was one where “… full provision is not made for all needs irrespective of constraint“.
The Claimant maintains that this is a critical conclusion because it submits that in consequence of adopting the 360 figure the Inspector simply failed to give effect to the process that is mandated by the NPPF for the determination of planning applications where there is no, or no emerging, strategic local plan.
the Inspector considered it appropriate to adopt the EEP figure rather than the DCLG figure. Her reasoning that led to this conclusion is set out in Paragraphs 29 and 30 of the DL which are to following effect:
“29. The RSS figure provided housing requirements for the period to 2021 and took account of the severe constraints in the District. It provides the only figure that has been scrutinised through the independent examination process. Government policy aims for localism rather than top down set targets but there was nothing to indicate that the constraints identified in the RSS process are reduced because the RSS is no longer extant or that any unmet need in St Albans District was distributed into other Districts in RSS policy H1. Paragraph 5.5 of the supporting text to RSS policy H1 advises that the overall regional identified provision falls significantly short of what is needed based on evidence about housing pressure, affordability and household projections.”
30. At this time and in the absence of an identified need that takes account of any constraints to development and acknowledging the age of the RSS data, and the fact that the RSS has now been revoked, I consider it is reasonable that the annual housing target should have regard to constraints in the district and be that which takes them into account. As resolved by the Council on 17 January 2013, provision should be made for a minimum of 360 residential units per annum on specific deliverable sites.”
This led inexorably to the conclusion that the appeal ought to be dismissed
In essence the submission made by HPL is that on a proper understanding of the NPPF read as a whole, a shortfall between objectively identifiable housing need and the housing that could be provided on identified deliverable housing sites identified by the LPA was capable of being a very special circumstance and that where such a contention was relied on by an applicant or appellant, the LPA and on an appeal the inspector was required to start by identifying the full housing needs of the relevant area on the basis of the best and most up to date evidence available. Once that exercise had been done, it was then for the decision maker to decide what weight should be given to any unmet need that had been identified, the weight to be given to any other circumstances relied on in support of the application and then to decide whether these factors in the aggregate clearly outweighed the harm caused to the Metropolitan Green Belt by reason of inappropriateness and any other harm. The Inspector in this case had failed to adopt this approach but instead started by reference to a housing need figure that was out of date, did not reflect actual need but was a figure arrived at taking account of the effect of various constraints including that imposed by the Green Belt and thus made an error of law. To the extent that the Inspector relied on the decision of the Cabinet she fell into error because she proceeded on the basis that it was a decision of the Council when it was not.
An here is a killer conusion in the meaning of para. 47 of the NPPF
given that it is necessary to take account of all the words used, that means that it is necessary to take account of the opening words of the paragraph – “To boost significantly the supply of housing …”. It is difficult to see how construing the whole of the first bullet point in the paragraph as meaning that the needs figure referred to is or could be a figure that expressly does not and does not purport to identify actual need could be said to give effect to those words….I consider that the approach adopted by the Inspector in this case was wrong in law. The proper course involved assessing need, then identifying the unfulfilled need having regard to the supply of specific deliverable sites over the relevant period. Once that had been done it was necessary next to decide whether fulfilling the need in fact demonstrated (in common with the other factors relied on in support of the development) together clearly outweighed the identified harm to the Green Belt that would be caused by the proposed development. Those of course are matters of planning judgment and are for an inspector not me. The point is not (as alleged by the SoS) a challenge to the outcome on the planning merits but a challenge to what in my judgment was an error of law by the Inspector that was not merely argued before her but was identified as being an error of law if adopted in the written closing submissions placed before her. Counsel for HPL accepted that in the end the outcome might be the same. In my judgment that concession was rightly made but is immaterial. The error to which I have referred above was fundamental and, I am satisfied, was one that could realistically have made a difference to the outcome.