Hunstan Defeat Costs St Albans 27K

My advice saying they would lose was free.

St Albans Gazette

St Albans District Council suffers expensive defeat in Harpenden Road Green Belt homes High Court battle

St Albans District Council today suffered an expensive defeat over its appeal against a ruling reviving plans for 116 new homes and a 72-bed care home on Green Belt land in the city.

The Court of Appeal in London backed a September High Court ruling in which Judge Pelling QC, sitting in Manchester, gave developer Hunston Properties a second chance at securing planning permission for the development on land at Harpenden Road, Sewell Park, St Albans, near St Albans Girls School.

As a result the Council has been told it must foot the legal costs of the developer and must make an interim payment of £27,500 in the next 21 days. The full amount will be assessed later, but is likely to be even higher, and comes on top of the council’s own lawyers’ bills for bringing the appeal.

As a result, the matter will have to be reconsidered by another inspector. The council had hoped to persuade the Court of Appeal to overturn the earlier decision and allow the refusal of permission to stand.

The Plan had a figure of 360 houses per year for the district but the developer claimed that there was actually a need for more than 688 new homes per year.

The council had shown available sites for 2,183 new houses and, while this would be enough to provide a five-year supply on the Plan figures, this would result in a significant shortfall based on the developer’s figures.

Judge Pelling QC had found that the inspector erred in law by failing to identify the full objectively assessed needs for housing in the area as required by the Government’s new National Planning Policy Framework.

And, upholding that decision, Sir David Keene said: “I agree with the judge below that the inspector erred by adopting such a constrained figure for housing need. It led her to find that there was no shortfall in housing land supply in the district.

“She should have concluded, using the correct policy approach, that there was such a shortfall. The supply fell below the objectively assessed five year requirement. Where this inspector went wrong was to use a quantified figure for the five year housing requirement which departed from the approach in the Framework.”

But he said that would not be the end of the matter when the application falls to be reconsidered, when the key question would be whether the shortfall provides “very special circumstances” sufficient to justify development in the Green belt.

The scale of the shortfall will have to be considered by the inspector dealing with the matter, against the particular circumstances faced by St Albans, where, the judge said “virtually all the undeveloped land in the district outside the built up areas forms part of the Metropolitan Green Belt”.

One thought on “Hunstan Defeat Costs St Albans 27K

  1. I think that this interpretation of what the judges said is not quite right. Actually I think everyone is distracted by what is only a technical loss. The extracts from Sir David Keene’s remarks are taken slightly out of context and relate to his summary of the historic views of the case, rather than the essence of this decision.

    The Court of Appeal judges did indeed find against the inspector and so technically the developer has won the right to go back to the planning process. However, the developer cannot now appeal against a win so until a higher court rules on a different case, or there is an act of parliament, the Court of Appeal decision will stand.

    The judges have ruled that the meaning of the law is a matter for them, and so any future interpretation of the law will be governed by their comments (“the meaning of the policy is for the courts, even if the application of the policy is for planning authorities and other planning decision-makers” which implicitly overrides ministerial guidance (Hunston decision para 4).

    However, the judges have also ruled that while the first inspector was wrong in law in using old housing numbers, any future inspector will have to make a decision on the basis of the guidance given in the Hunston judgement (Hunston decision conclusion para 33).

    So a) this ruling is definitive and b) must influence the meaning of the NPPF and future inspectors’ decisions.

    Most significantly, it notes in the discussion that the district in question “is subject on a considerable scale to policies protecting much or most of the undeveloped land from development except in exceptional or very special circumstances, whether because such land is an Area of Outstanding Natural Beauty, National Park or Green Belt. If that is the case, then it may be wholly unsurprising that there is not a five year supply of housing land when measured simply against the unvarnished figures of household projections. A decision-maker would then be entitled to conclude, if such were the planning judgment, that some degree of shortfall in housing land supply, as measured simply by household formation rates, was inevitable”. (paragraph 29).

    It specifically states in paragraph 31 that Hunston’s suggestion that the fact that the planning authority would only have itself to blame because of a failure to produce a local plan is not the proper approach – that “Planning decisions are ones to be arrived at in the public interest”.

    Furthermore, the key question, as set by the appeal judges, in considering the green belt, is whether very special circumstances apply – see paragraph 28 “The crucial question for an inspector in such a case is not: is there a shortfall in housing land supply? It is: have very special circumstances been demonstrated to outweigh the Green Belt objection? ”

    They answer this in the final paragraph before the conclusion, which is the nub of the issue: (see paragraph 32): “The ultimate decision may well turn on a number of factors, as I have indicated, including the scale of the shortfall but also the context in which that shortfall is to be seen, a context which may include the extent of important planning constraints in the district as a whole. There may be nothing special, and certainly nothing “very special” about a shortfall in a district which has very little undeveloped land outside the Green Belt. ”

    So in essence, the Appeal Court judges have ruled that housing need alone, and a shortfall in the 5 year housing supply, whether or not evidenced by current local plans, is not sufficient to demonstrate very special circumstances in the context of an area where most undeveloped land is protected by designation.

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