Appeal Court blocks developer's fresh effort to secure consent for green wedge homes

The Court of Appeal has rejected a developer's fresh effort to overturn a Greater Manchester council's refusal of its plans for a housing scheme in a protected green wedge, dismissing a claim that a key relevant planning policy was out of date.

London's Royal Courts of Justice
London's Royal Courts of Justice

The Appeal Court has dealt a fresh blow to developers Peel Investments (North) Limited when it ruled today that a 14-year-old policy protecting from development a 195-hectare stretch of land within the green belt, known as the "Worsley Greenway", remains a valid basis for planning decisions.

Peel Investments had put forward two alternative development proposals for the site, the first involving the construction of up to 600 homes, and the other up to 165 homes. Both planning applications were refused by Salford City Council.

The council cited Policy EN2 of the Salford Unitary Development Plan (SUDP) which was adopted in 2006. This describes the Greenway as a strategically important green wedge and states that developments will not be permitted which detract from the openness of the area or which would cause unacceptable harm to its character and value as a recreational, agricultural and wildlife resource.

Following a public inquiry, Peel Investments' appeal against the council's decisions was rejected by the housing secretary in November 2018

Although the SUDP reached its expiry date in 2016, the housing secretary found that Policy EN2 was not out of date. He acknowledged that the city council currently had no extant policies in place concerning the need for and distribution of new housing in its area, but found that Policy EN2 was not impeding delivery of housing sites.

Although there were deficiencies in the city council's provision for large or aspirational family properties, and wider issues concerning homelessness and affordable housing, he noted that, on an arithmetical basis, the council could demonstrate a housing land supply of over 13 years.

He gave "substantial weight" to the harm that the development would cause to the character and appearance of the Greenway and found that Peel Investments' plans would conflict with the development plan.

On the basis that Policy EN2 remained relevant and important and was not out of date, the secretary of state agreed with the planning inspector who presided over the public inquiry that a "tilted balance" should not be applied in favour of the proposals.

Peel Investments' challenge to the secretary of state's decision was rejected by the High Court in August last year.

Appealing against that outcome, Peel Investments argued that Policy EN2 became out of date on expiry of the SUDP, which covered the period from 2004 to 2016.

The company also pointed to the absence, since 2009, of any local policies in relation to housing need and distribution.

Although it accepted that the city council had a housing land supply in excess of five years, it argued that most of that related to city-centre apartments. There was a demonstrable need for more affordable and family homes, the firm maintained.

Ruling on the appeal, Lord Justice Baker noted that, by operation of the Planning and Compulsory Purchase Act 2004, the policies in the SUDP expired in June 2009 unless saved by a direction issued by the secretary of state.

Such a direction was given in February 2009 and over 100 policies in the SUDP - including Policy EN2 - were saved. The city council's strategic policy in respect of housing supply was, however, not saved and duly expired.

Rejecting Peel Investments' arguments, the judge said that there was nothing in the National Planning Policy Framework (NPPF) "to suggest that the expiry of the period of the plan automatically renders the policies in the plan out of date."

The judge, who was sitting with Lord Justice Lewison and Sir Stephen Richards, added: "A policy is not out of date simply because it is in a time-expired plan... if the NPPF had intended to treat as out of date all saved but time-expired policies, it would not have used the phrase 'out of date' but rather the language of time-expired policies or policies in a time-expired plan."

Turning to the housing supply issue, he told the court: "I do not accept Peel Investments' submissions that a plan without strategic housing policies is automatically out of as to engage the tilted balance.

"The secretary of state decided in 2009 to save a significant number of the policies in the SUDP, including the majority of the strategic policies. It is therefore incorrect to characterise Policy EN2 as a 'freestanding' policy but rather one of 104 policies in the SUDP saved by the secretary of state."

The judge added: "It is obvious that many policies will not expire with the plan but, rather, will survive beyond the plan period. The policy under consideration here, which addresses environmental protection, clearly has a life beyond the expiry of the plan."

The "fundamental aim" of the NPPF to prevent urban sprawl and to permanently maintain the openness of the green belt was "wholly inconsistent with the notion that environmental policies lapse automatically when the plan period comes to an end or where no strategic housing policies are in place", the judge said.

Peel Investments' appeal was dismissed.

Peel Investments (North) Limited v Secretary of State for Housing, Communities and Local Government. Case Number: C1/2019/2149

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