Guildford’s Local Plan and "exceptional circumstances"
Re-drawing the Green Belt
For several decades, the Government has told us that the “fundamental aim” of Green Belt policy is to prevent urban sprawl by keeping land permanently open (albeit - and this is for the true #planoraks - not in the original 1955 Green Belt circular, which said not a thing about “openness”).
The logic of permanent openness is that boundaries should not often be re-drawn. And the older caselaw on the “exceptional” circumstances policy test for re-drawing Green Belt boundaries have supported that view.
The courts suggested that to be exceptional, more should be required than “general planning concepts” or the re-assessment of a site’s planning merits, and that the test is “very stringent”: see the helpful summary of the older law and policy from [110] of the Gallagher Homes judgment.
More recently, the High Court confirmed that exceptional circumstances can embrace the need to promote sustainable patterns of development, and a site’s suitability for housing development.
In the 2015 Calverton Parish Council case, Mr Justice Jay set out a 5-point plan for those seeking to justify an exceptional circumstances case on the meeting of housing need. Having quantified the local area’s housing need, the Council should then consider whether exceptional circumstances exist in the light of:
(i) the acuteness/intensity of the objectively assessed need (matters of degree may be important);
(ii) the inherent constraints on supply/availability of land prima facie suitable for sustainable development;
(iii) (on the facts of this case) the consequent difficulties in achieving sustainable development without impinging on the Green Belt;
(iv) the nature and extent of the harm to this Green Belt (or those parts of it which would be lost if the boundaries were reviewed); and
(v) the extent to which the consequent impacts on the purposes of the Green Belt may be ameliorated or reduced to the lowest reasonably practicable extent.
In 2018, the NPPF was revised to include more guidance on what will add up to exceptional circumstances at [137]:
Before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, 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. This will be assessed through the examination of its strategic policies, which will take into account the preceding paragraph, and whether the strategy:
a) makes as much use as possible of suitable brownfield sites and underutilised land;
b) optimises the density of development in line with the policies in chapter 11 of this Framework, including whether policies promote a significant uplift in minimum density standards in town and city centres and other locations well served by public transport; and
c) has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.
Opinions differ over whether that guidance raised or lowered the bar over the pre-existing position, informed as it was by cases like Calverton above which said very similar things. My view is that [137] will assist LPAs to demonstrate exceptional circumstances. It adds some particularity to an otherwise ambiguous phrase, which should help Inspectors toward accepting the view that the test has been made out in a given case.
In any event, debates remained over - among other things - the extent to which unmet need for housing in an LPA’s area (quite unexceptional in a national housing crisis) can constitute an exceptional circustance, and e.g. how the test compares to the “very special circumstances” test which applies to planning applications for inappropriate development in the Green Belt.
Some of the issues have been answered by Sir Duncan Ouseley (apparently no less active in retirement) in the failed challenge to the adoption of Guildford’s Local Plan.
In the Guildford judgment, Sir Duncan confirmed that:
There is no definition of the policy concept of "exceptional circumstances". This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case. It is deliberately broad, and not susceptible to dictionary definition.
Whether a particular factor was capable of being an "exceptional circumstance" in any particular case was a matter of law; but whether in any particular case it was treated as such, was a matter of planning judgment.
A judicial decision that a factor relied on by a planning decision-maker as an "exceptional circumstance" was not in law capable of being one is likely to require some caution and judicial restraint. 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.
"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 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.
So a very broad exercise of planning judgment for the decision-maker which the courts will not readily disturb. Which can include meeting the need for market housing.
I suspect if and when we return to the happy days of EiPs - which the most recent guidance confirms “cannot currently take place” - the Guilford judgment will be a regular fixture for discussion when it comes to Green Belt plans. Indeed, it was so at the St Albans examination at which I appeared in January (which feels like a lifetime ago), albeit that examination didn’t make it into the 2nd week.
Watch this space, as Mrs Justice Lang recently granted permission for a challenge to be brought on similar grounds to the adoption of the Wycombe Local Plan. Final hearing date awaited (I act for one of the interested party developers).
