Developer Fox Land and Property Ltd was refused planning permission for development of the site off Glebelands by communities secretary Eric Pickles.
Pickles turned the scheme down despite a recommendation from a planning inspector that permission be granted.
Fox Land had asked one of the country’s top judges, Mr Justice Blake, to over-rule Pickles, quash his refusal decision and order him to reconsider the proposal for the 7.4-hectare site of agricultural land adjacent to the A130.
However, the judge today ruled that the secretary of state was entitled to conclude that the harm to the green belt that would result from the development could not be outweighed by the advantages of the scheme in helping meet Castle Point Borough Council’s housing targets.
In the decision, Pickles recognised that the local planning authority, Castle Point Borough Council, could show only an “exceptionally low” housing land supply of 0.7 years.
But he concluded that this did not outweigh the presumption against inappropriate development in the green belt.
Fox Land claimed that there was no local green belt policy in place for the appeal site, because the key provision had lapsed.
And the company argued that, in any event there were nevertheless “very special circumstances” outweighing the harm.
They claimed that the secretary of state wrongly took into account a letter from local MP Rebecca Harris voicing her opposition to the development, without giving it a proper opportunity to respond.
And they argued that there was no factual basis for the secretary of state’s disagreement with the inspector on the issues of harm to the green belt and that he took irrelevant considerations into account.
However, the judge ruled that local green belt policies remained in existence, adding: “Accordingly, the secretary of state was correct to conclude that there remained a green belt within Castle Point.”
He said that the secretary of state had concluded that Harris’s representations “carried little weight”, and continued: “There is no reason to believe either that the representations made any difference to the decision or that the claimant has been unfairly deprived of the opportunity to make any particular response to them. The MP’s views were known at the inquiry and the claimant was able to address them then.”
He found that there was both an evidential and planning policy foundation for the secretary of state’s decision and that he could not conclude that he had reached an irrational conclusion.
Ground 1: Did the saved plan include a GB Policy?
- The Secretary of State agreed with the inspector that the saved policies GB2-7 resulted in the GB being saved in Castle Point. The meaning of a planning policy is for the court to determine objectively, having regard to the language used and the context and purpose; although plans are not to be construed as if they were a statute or contract and may refer to matters of planning judgment: see Tesco Stores v Dundee City Council  UKSC 13;  PTSR 983 per Lord Reed at  and .
- The saved policies refer to the continuation of the GB and deal with the circumstances when existing buildings can be modified. The meaning and the existence of the policies depends on there being a GB to which they can apply. Mr Goatley recognised this and did not shrink from the submission that by permitting policy GB1 to lapse that asserted the existence of the GB as defined in the proposals map the second defendant had by inadvertence permitted all GB related policies to lapse including the ones that had been purportedly saved.
- I cannot accept this submission. Although it would have been neater and simpler for a modified GB1 to remain in existence and bring the proposals map directly into play as an element of the policy, I conclude that this has been achieved indirectly because the saved policies refer to the GB and there are therefore policies in existence to which the proposals map can attach and form part of the policies (see TPCA 1990 s.36 (6) and s 54 (1)(c)) .
- A related issue arose in the case of R (Cherkley Campaign Ltd) v Mole Valley DC  EWHC 2582 (Admin) where Haddon-Cave J said at 
“In my judgment, the direction of the Secretary of State made on 25 September 2007 “saving” certain listed “policies” contained in the Mole Valley Local Plan, had the effect, in law, of preserving all the “supporting text” to policy REC12, including “reasoned justification” for the policy and the explanation of “how [REC12] will be implemented by the Council” contained in paragraphs 12.71 and 12.72, together with the “illustrative map”, so that appropriate resort could be made to these materials when interpreting and applying the policy.”
- Accordingly, the Secretary of State was correct to conclude that there remained a GB within Castle Point and as matter of planning policy.
The justification for building much needed housing on this GB strip is narrowly balanced. Whatever its qualities as open land, the site does not have high landscape value and may still prove to be the least worst option for housing development. If the Secretary of State’s optimism proves unjustified and other GB or open land is not released for housing development by a new Local Plan, the balance may tip in favour of this development on future consideration. In the absence of concerted effort and effective progress, the outcome of the present process may prove to be more of a temporary reprieve than a durable future for the appeal site.
Very Temporary – on 15th January Castle Point Council approved for consultation its draft Local Plan which removes the site from the GB (if it exists) and allocates the site for for housing (allocation H13).