The court ruling that legal experts say will ease green belt release

A High Court ruling on a challenge to a Surrey local plan may make it easier for both councils and developers to make the case for releasing green belt via plan-making, say barristers.

Guildford (pic: Andrew Skudder, Flickr)
Guildford (pic: Andrew Skudder, Flickr)

Last week, a High Court judge dismissed a judicial review challenge against Guildford Borough Council’s adopted local plan in what observers have described as a highly significant ruling for both plan-makers and promoters.

The plan has long been controversial. It proposes deallocating three major greenbelt sites - Wisley Airfield, Blackwell Farm and Gosden Hill Farm - for development totalling 5,200 homes and an overall reduction in the borough's green belt by 1.5 per cent. In addition, the total number of new homes planned exceeded by some distance the borough's housing requirement based on its objectively-assessed need. Though the requirement came to a total of 10,678 up until 2034, or 562 homes per year, the plan allocates sites for the delivery of 14,602 homes. This, the inspector felt, was justified as "headroom" to take account of potential under delivery of housing in future years and to address the very high level of affordable housing needed in the area.

However, the proposals prompted a huge political backlash. The plan was adopted by the council's Conservative administration in April, just days before it lost power in May’s local elections. The Tories lost more than two thirds of their seats, with both the Liberal Democrats and anti-green belt release groups making significant gains.

Following the election, local campaigner Julian Cranwell, a member of the Guildford Green Belt Group, joined Compton and Ockham parish councils in mounting a judicial review challenge to the plan. Cranwell argued that the "exceptional circumstances" test required by the National Planning Policy Framework (NPPF) to allow green belt release in local plans had not been met, and in particular was not justified by the 4,000-home "headroom", while the inspector’s assessment of the area's housing need was excessive.

However, the judge, Sir Duncan Ouseley, dismissed the complainants’ arguments. Critically, he said that the inspector was entitled to find "exceptional circumstance, strategic and local" to justify the release of the greenbelt sites. Referring to the 4,000 homes above the housing need, he said: "I see nothing illogical in the inspector's thought process, requiring a buffer of some significance."

Ouseley also said the exceptional circumstances test is "less demanding" than the development control "very special circumstances" test for permitting inappropriate development in the green belt. He added that the scope of the test can include "general planning needs, such as ordinary housing" and it is "not limited to some unusual form of housing, nor to a particular intensity of need".

According to Zack Simons, a planning barrister at Landmark Chambers, the decision does not change the law. Rather, he said, it provides clarity on the circumstances under which the exceptional circumstances test can be met. "This is the clearest and most recent examination of the proper approach to exceptional circumstances," he said. "I’ve no doubt that the judgment will now be cited at plan examinations all over the country that are examining the justification for proposed green belt release."

Jonathan Easton, a planning barrister at Kings Chambers, agreed, adding that the judge was also clear that the judiciary should only rarey seek to override the professional judgment of a planning authority or an inspector when it comes to exceptional circumstances. "This should give some comfort to local authorities that their judgments about green belt release should more easily survive judicial scrutiny," he said. "It continues the current theme of judicial deference to decisions that require ‘planning judgment’ to be deployed."

The fact that the exceptional circumstances cited by the inspector in justifying green belt release were "broad and strategic", including the need for headroom in terms of housing delivery, was also a significant part of the judgment, Easton added. "If a local authority can justify the release of greenbelt land, not to meet their objectively assessed housing need (OAHN) but 4,000 dwellings above that figure, it suggests that the circumstances in which greenbelt allocation can be made are rather broader than previously thought," he said.

"By the very definition, the circumstances will be different in each area," said Catriona Riddell, the Planning Officers' Society's Strategic planning specialist. The NPPF currently advises on the sort of thinking process LPAs should go through to inform the decision on whether there are exceptional circumstances or not, but this case makes it clear that this should not be treated as the only basis for informing the decision."

Easton believes the Guildford case could help developers to argue that councils should not shy away from higher housing numbers merely because green belt release will be needed to achieve them. "Some local authorities may wish to be conservative in their overall housing requirements, citing green belt constraints as a reason for not going higher," he said. "The Guildford judgment provides quite a strong case that broader spatial objectives can – and perhaps should – be taken into account and in some cases can justify a higher housing requirement."

However, Paul Miner, strategic plans and devolution lead at the Campaign to Protect Rural England, does not think that the judgment will be as influential as it might first appear. He pointed out that the Guildford local plan was examined under the provisions of the 2012 NPPF, rather than this year’s revised iteration. Paragraph 137 of the 2019 NPPF states that "the strategic policy-making authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development". Because of this, Miner said the judgment "will be less useful as plans come forward for examination under the 2019 NPPF" though he conceded it "may have some relevance where proposals for green belt release are contained in plans being examined under the 2012 NPPF".

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