St Albans v Hunston Properties Ltd, R (On the Application Of) & Anor

Where no Framework-compliant Local Plan has set housing requirements, the five-year housing-land calculation must use the full objectively assessed housing need. The qualification in paragraph 47 of the National Planning Policy Framework concerns the extent to which a Local Plan should meet that need. It does not permit an inspector to reduce assessed need by applying planning constraints through a revoked regional-plan figure.

A shortfall against that need does not itself establish very special circumstances for inappropriate Green Belt development. The decision-maker must assess the scale of the shortfall and its wider planning context, including district-wide protective constraints, before deciding whether other considerations clearly outweigh Green Belt harm.

Hunston applied for outline permission for housing, a care home and associated facilities on agricultural land almost wholly within the Metropolitan Green Belt. The Council refused permission. A planning inspector dismissed Hunston’s statutory appeal, treating a revoked regional-plan figure, which reflected Green Belt constraints, as the appropriate five-year housing requirement.

On Hunston’s challenge under sections 78 and 288 of the Town and Country Planning Act 1990, the High Court quashed the inspector’s decision. The Council appealed. The central issue was whether paragraph 47 of the National Planning Policy Framework permitted the inspector to use a constrained housing-requirement figure where no Framework-compliant Local Plan had been adopted.

1. Appeal dismissed unanimously. The inspector had erred in law by calculating the five-year housing requirement from a constrained figure derived from the revoked East of England Plan. The inspector’s decision remained quashed and the section 78 appeal had to be redetermined.

2. Paragraph 47 should be read as a whole, but its first bullet point distinguishes between objectively assessing housing need and deciding how far a Local Plan can meet it consistently with other Framework policies. The qualification concerning consistency with Framework policies qualifies the Local Plan’s response to need. It does not qualify or reduce the assessment of need before the Local Plan process has produced a housing requirement.

3. An inspector determining an individual appeal cannot replicate the Local Plan process in order to derive a constrained requirement. That process requires a rounded assessment involving parties and considerations not available in the appeal. In the absence of a Local Plan figure, the inspector should therefore have identified a housing-land shortfall against the objectively assessed five-year requirement.

4. That error did not mean that permission had to be granted. Under paragraphs 87 and 88 of the Framework, inappropriate Green Belt development requires very special circumstances. A housing-land shortfall is capable of contributing to such circumstances, but it does not establish them automatically. The decision-maker must make a planning judgment on whether other considerations clearly outweigh the Green Belt harm and any other harm.

5. The scale of the shortfall and its planning context are relevant to that judgment. District-wide constraints, including the extent to which undeveloped land is protected by Green Belt policy, may affect the weight of a shortfall. Considering those constraints both in the wider context and in relation to the appeal site is neither circular nor double-counting. The ultimate balancing exercise was remitted to the decision-maker.

• Court of Appeal (Civil Division) — [2013] EWCA Civ 1610: dismissed the Council’s appeal and upheld the quashing of the inspector’s decision.

• High Court, Administrative Court — H.H. Judge Pelling QC allowed Hunston’s challenge under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision. A citation was not stated in the judgment.

• Planning inspector — dismissed Hunston’s appeal under section 78 of the Town and Country Planning Act 1990 on 12 March 2013.