Legal Viewpoint: No magic bullets but plenty of freedom on green belt review

The High Court challenge on the Guildford Local Plan, heard by Sir Duncan Ouseley QC at the end of 2019, crystallises justifications for plan-led green belt release where there is political will to meet housing needs.

As adopted, the plan allows significant green belt release, including 263 hectares for 5,000 homes across the three largest allocations. The plan had been examined under the 2012 National Planning Policy Framework (NPPF), using a locally derived rather than standardised objectively assessed need (OAN) figure. In response to the examiner’s initial concerns about deliverability, the council added four further green belt sites. By the time post-examination changes were being considered, however, revised household projections indicated a 1,700-home lower OAN.

The authority nevertheless retained most of the draft allocations, resulting in a 4,000-home surplus, equivalent to a 36 per cent buffer against underdelivery. It did so to ensure a resilient long-term supply of land for housing, economic and business development and to achieve a sustainable pattern of development. It had already rejected underdelivery against OAN as an "unreasonable alternative", given the scale of need and the limits of urban intensification. The examiner had accepted that there was no prospect of these needs being met over the plan period without green belt release.

Three objectors claimed that the plan’s adoption was unlawful under section 113(3) of the Planning and Compulsory Purchase Act 2004. They maintained that the strategic and local exceptional circumstances justification for green belt release was improper, environmental assessment of a "do less than OAN" option was required and creating this scale of delivery buffer using green belt land was unlawful.

The court’s refutation of these claims cannot offer magic bullets on green belt review, because NPPF-led plan-making is largely an exercise of political willpower. It nonetheless crystallises several issues. Firstly, exceptional circumstances for green belt release do not need to be extraordinary, and are less demanding than the "very special circumstances" needed for individual applications. Neither must it be a last resort.

Secondly, general housing need, affordability, business and employment needs and extent of impact on openness may all be "exceptional". Thirdly, meeting OAN and ensuring a sensible supply buffer are legitimate purposes of green belt release. So too are achieving a sustainable pattern of development, providing defensible longer-term boundaries and realising strategic site benefits.

The judgment notes that "policy on" analysis – deciding on the ultimate balance between change and stasis – will "almost inevitably" require a careful balancing of relative benefits and harms. This is often a missing link in "do minimum or less" plans. It is also worth noting that the scale of green belt release needed to avoid "irresponsible" consequences from failing to meet OAN was less than 1.5 per cent of local green belt in this case.

Case: Compton Parish Council v Guildford Borough Council

Date: 4 December 2019

Ref: [2019] EWHC 3242 (Admin)

Roy Pinnock is a partner at Dentons UK and Middle East LLP

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