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High Court Considers Green Belt Release for Housing - and Dutch Nitrogen Issue

Richard Honey

Sir Duncan Ouseley has handed down judgment in the case of Compton PC, Ockham PC & Cranwell v Guildford BC, SSHCLG & Ors [2019] EWHC 3242 (Admin), dismissing three challenges to the adoption of the Guildford Local Plan under s113 of the Planning and Compulsory Purchase Act 2004. 

The main issues in the case related to the justification for Green Belt release in the local plan to provide for a supply of around 14,000 houses when the objectively-assessed need (OAN) was around 10,000 houses. 

In considering the requirement in the National Planning Policy Framework that Green Belt boundaries should only be altered in exceptional circumstances, the Judge commented:

  • All that is required is that the circumstances relied on, taken together, rationally fit within the scope of “exceptional circumstances” in this context. The breadth of the phrase and the array of circumstances which may come within it place the judicial emphasis very much more on the rationality of the judgment than on providing a definition or criteria or characteristics for that which the policy-maker has left in deliberately broad terms.
  • There is a danger of the simple question of whether there are “exceptional circumstances” being judicially over-analysed. This phrase does not require at least more than one individual “exceptional circumstance”. The “exceptional circumstances” can be found in the accumulation or combination of circumstances, of varying natures, which entitle the decision-maker, in the rational exercise of a planning judgment, to say that the circumstances are sufficiently exceptional to warrant altering the Green Belt boundary.
  • General planning needs, such as ordinary housing, are not precluded from its scope; indeed, meeting such needs is often part of the judgment that “exceptional circumstances” exist; the phrase is not limited to some unusual form of housing, nor to a particular intensity of need.
  • It is clearly implicit in the stage 2 process that restraint may mean that the OAN is not met. But that is not the same as saying that the unmet need is irrelevant to the existence of “exceptional circumstances”, or that it cannot weigh heavily or decisively; it is simply not necessarily sufficient of itself. These factors do not exist in a vacuum or by themselves: there will almost inevitably be an analysis of the nature and degree of the need, allied to consideration of why the need cannot be met in locations which are sequentially preferable for such developments, of the impact on the functioning of the Green Belt and its purpose, and what other advantages the proposed locations, released from the Green Belt, might bring, for example, in terms of a sound spatial distribution strategy.
  • The analysis in Calverton PC of how the issue should be approached was described by Jay J as perhaps a counsel of perfection; but it is not exhaustive or a checklist. The points may not all matter in any particular case, and others may be important, especially the overall distribution of development, the scope for other uses to be provided for along with sustainable infrastructure.
  • “Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.”

The phrase “exceptional circumstances” should be considered as a whole, and in its context, which is to judge whether Green Belt boundaries should be altered in a Local Plan review. It is not necessary to explain why each factor or the combination is itself “exceptional”. It does not mean that they have to be unlikely to recur in a similar fashion elsewhere. It is sufficient reasoning to spell out what those factors are, and to reach the judgment. There is a limit to the extent to which such a judgment can or should be elaborated.

On the facts of the case, Sir Duncan Ouseley held that it was lawful to allow headroom or a buffer of around 4,000 units of supply over OAN, to ensure that need was met and that a rolling five-year housing land supply was maintained.  He concluded that the prospect that a level of housing in excess of the OAN might be achieved can contribute to exceptional circumstances for Green Belt release.  In light of the pressing housing problems in Guildford, the Judge recognised that there would plainly be significant benefits in terms of affordability and affordable housing if more housing were provided than simply to meet needs. 

The Judge concluded that the advantage of a higher level of housing supply could contribute to exceptional circumstances for Green belt release.  Taken as part of the whole group array of exceptional circumstances, there was nothing unlawful about that being seen as a useful or even significant advantage, in line with NPPF housing policy, and as a contributor to exceptional circumstances. 

In relation to the Habitats Directive, the challenges included an argument that, in light of Cooperatie Mobilisation for the Environment UA v College van Gedeputeerde (C-293/17) [2019] Env LR 27 (the ‘Dutch Nitrogen’ case), anticipated reductions in vehicle emissions arising in the future could not be taken into account in assessing the impact of local plan developments and judging whether there would be an adverse effect on the integrity of a Special Protection Area (SPA).  This argument was not pursued at the hearing.  The Judge observed that the anticipated reductions in vehicle emissions was not any form of mitigation but rather future changes to the baseline against which the impact of the development had to be considered.  It was, however, argued that the fact that the local plan developments would add to pre-existing exceedances of critical levels of NOx meant that there was bound to be an adverse effect on the integrity of the SPA.  That argument was rejected by the Judge. 

There were a number of other issues discussed in the judgment, including in relation to strategic environmental assessment and two specific Green Belt housing sites. 

Richard Honey acted for the Secretary of State for Housing, Communities & Local Government, the Second Defendant in the challenges.