Central Bedfordshire Council (CBC) granted outline permission in June 2014 for proposals for a 5,150-home development on 262 hectares of farmland to the north of Houghton Regis. The site was located within the green belt, but CBC had considered that "very special circumstances" existed to justify the development as required by paragraphs 87 and 88 of the National Planning Policy Framework (NPPF). The site had also been identified in CBC's emerging local plan for removal from the green belt and redevelopment.
Neighbouring Luton Borough Council, which had previously promoted the site for removal from the green belt and redevelopment in an abandoned draft joint core strategy with CBC, applied for a judicial review of the decision to grant permission for the scheme. LBC's challenge was rejected by a High Court judge in December and, in a decision dated 20 May, appeal judges Lord Justice Sales, Lord Justice Tomlinson and Lord Justice Longmore agreed that LBC's subsequent appeal should be dismissed on all grounds.
Paragraph 83 of the NPPF requires that green belt boundaries should be established in local planning authorities' local plans and that, once established, they "should only be altered in exceptional circumstances, through the preparation or review of the local plan". LBC had argued that, by granting permission for the development of the Houghton Regis site, CBC had failed properly to take paragraph 83 of the NPPF into account.
Appeal judge Lord Justice Sales said that LBC was seeking "to attach greater weight to paragraph 83 than it can bear". The appeal judge said that, properly interpreted, "paragraph 83 does not lay down a presumption or create a requirement that the boundaries of the green belt must first be altered via the process for changing a local plan before development can take place in the are in question". On the contrary, Lord Justice Sales said paragraphs 87 and 88 of the NPPF, which allow for the approval of inappropriate development harming the green belt in the case of 'very special circumstances', "plainly contemplate that development may be permitted on land within the green belt without the need to change its boundaries in the local plan".
In the present case, the appeal judges found that CBC had "lawfully and rationally" concluded that the necessary 'very special circumstances' existed. CBC had also properly addressed the issue of whether its decision would be premature to the local planning process, through which it was intended to remove the site from the green belt and develop it in a manner consistent with the planning application.
The appeal judges also agreed with the High Court judge that CBC had taken the correct approach in the weight it applied to emerging policy; that its planning committee had not treated the adoption of the emerging development plan as inevitable; and that it had given due consideration to alternative development sites.
Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said:
"Paragraph 83 is clearly a policy that should be invoked when revising green belt boundaries, not for when developing on green belt land – residential development on green belt and the removal of land from the green belt are two very different processes, with different tests to pass before their implementation can take place."
"Whilst 'very special circumstances' for residential development has proven to be an extremely high hurdle indeed, it can and has been attained where particular situations allow," said Holgate. "This judgment simply reinforces the clear demarcation in the NPPF between plan making and decision taking."