High Court finds alteration of green belt boundaries does not exceed inspector's planning powers

Developer IM Properties had been unsuccessful in promoting a site for a new village to the north east of Lichfield for allocation in the Lichfield District Local Plan Strategy (LDLPS). Following the adoption of the LDLPS, the developer applied to the High Court to quash the plan, arguing that examining inspector Mr R Yuille had erred in not asking himself whether it was necessary to remove two alternative development sites to the south of Lichfield from the green belt.

In his initial findings on the soundness of the LDLPS, Yuille had recommended that the Council find a site or sites for an additional 900 homes to address a shortfall of housing provision. The Council's subsequent work on a sustainability appraisal resulted in a proposal to modify the plan, releasing sites at Cricket Lane and Deanslade Farm from the green belt for housing development.

High Court judge Mr Justice Cranston rejected submissions on behalf of the developer that Yuille had failed to consider whether exceptional circumstances existed justifying the removal of the two sites from the green belt and had instead relied on "general planning concepts, such as suitability and sustainability".

"There is no doubt that [Yuille] demonstrated that he was well aware of the relevant legal and planning policy tests", said the judge. "After referring to the openness and permanence of the green belt, he stated ... the test of exceptional circumstances and the statutory need to promote sustainable patterns of development." Mr Justice Cranston said the inspector had then correctly "identified that the question of whether circumstances were exceptional for these purposes required an exercise of planning judgment" and "summaris[ed] ... the exceptional circumstances as he had found them".

The judge disagreed that Yuille's reasoning had been circular. He noted that "the green belt sites [released in the local plan] were consistent with the local plan's urban and key centre strategy. These are material land use planning benefits and locational advantages of the green belt sites, which can lawfully form part of a package of exceptional circumstances".

IM Properties had also argued that the planning inspector had exceeded his powers in recommending modifications to the LDLPS that changed the green belt boundaries. The developer claimed that such changes amounted to re-writing the plan, which had sought to recognise the existing boundaries and did not propose the release of any green belt sites. Mr Justice Cranston disagreed, noting that changes made in 2011 to the Planning and Compulsory Purchase Act 2004 had "increase[d] the scope for planning inspectors to recommend changes so as to enable local plans to be found sound" and that "there is no limitation in the statutory language preventing a 'rewrite' of the local plan".

Mr Justice Cranston said the "nature of the modifications were a matter of judgment for the planning inspector". He was satisfied that Yuille had "grappled with the rival submissions about strategy ... had concluded that the release of the green belt sites was consistent with the plan's urban and key centre strategy and … was satisfied as to compliance with legal requirements."

Mr Justice Cranston rejected claims that the planning inspector had failed to determine whether the Council's sustainability appraisal was legally compliant, noting that Yuille had in fact expressly considered the lawfulness of the appraisal more than once in his report.

He also rejected the developer's argument that the sustainability appraisal had been legally and procedurally flawed and "ludicrously unfair". The judge found that a cut-off date imposed by the Council for receiving information on sites for 900 additional homes was "sensible" and had not prevented alternatives from being comparably considered or breached regulations requiring 'current knowledge' to be taken into account. He found that the Council's consultation on the sustainability appraisal had been valid and that the public had had been provided with sufficient information to understand the document's findings and its methodology.

Matthew Fox of Pinsent Masons said: "In light of the government’s push for local plan delivery and for more housing but also protecting the green belt,  this case helpfully restates the crucial part inspectors play in ensuring that local plans can be found sound, and survive legal challenge. It is hoped that local authorities will be able to take comfort from this case to make modifications to plans that inspectors suggest, even if they are a radical departure from what has come before."

"The judgment demonstrates once again the primacy courts place on respecting the planning judgment that inspectors reach, both in making suggested changes to plans and in testing the exceptional circumstances required for altering green belt boundaries," said Fox.

“Mr Justice Cranston restated the government’s position that the alteration of green belt boundaries should take place as part of the plan-making process and the principle elucidated in a case between Gallagher Homes and Solihull MBC that any alteration to a green belt boundary cannot simply be a simple planning balance, and must take into account the relevant planning and legal tests on the facts," said Fox. "This applies to both local authorities and to inspectors, and should be considered when promoting a local plan that proposes to alter these boundaries."

"The decision also demonstrates the importance to developers of promoting a green belt review and seeking the removal of potential development sites from the green belt at an early stage in the plan-making process," said Fox. "Evidencing the value, or lack thereof of a proposed site, in green belt terms, will, together with the sustainability of the location, be a crucial factor in convincing a local authority that exceptional circumstances exist."

"The lack of housing supply should not be underestimated but it is unlikely that sites that have a strong green belt pedigree will readily be released, even in the light of a significant housing shortage, given current local plan trends," he said.