Solihull Metropolitan Borough Council v Gallagher Estates Ltd & Anor

A local plan must assess the full, objectively assessed need for housing before considering whether other national planning policies justify meeting less than that need. A policy-constrained housing figure cannot itself constitute that assessment.

Established Green Belt boundaries may be altered only in exceptional circumstances which necessitate revision. General planning considerations, including a site's present unsuitability for housing, are insufficient without a material reason justifying alteration of the boundary.

Two developers challenged the adoption of the Solihull Local Plan under section 113(3) of the Planning and Compulsory Purchase Act 2004. The plan placed their proposed housing sites in the Green Belt.

Hickinbottom J upheld the challenge. He found that the plan-making process had neither separately assessed the full, objectively assessed housing need nor established exceptional circumstances for changing the Green Belt boundary. He remitted the defective parts of the plan to the Planning Inspectorate for examination by a different inspector.

The Council appealed those findings. The developers cross-appealed against the remedy, contending that the defective provisions should have been quashed. The central issues were the correct application of paragraphs 47 and 83 of the National Planning Policy Framework and the appropriate relief.

1. The Council's appeal was dismissed. Paragraph 47 of the National Planning Policy Framework introduced a mandatory two-step approach. First, the full, objectively assessed housing need must be determined. Secondly, the plan-maker must decide whether, and to what extent, other Framework policies justify constraining the amount provided. The qualification concerning consistency with other policies affects the extent to which the plan should meet assessed need; it does not qualify the assessment of need itself. Hunston Properties Ltd [EWCA] Civ 1610 was binding on that construction.

2. The earlier planning regime did not satisfy this requirement merely because it used evidence about housing need. It proceeded by balancing need, demand and policy constraints together. Although earlier regional evidence could still be used, the Framework required housing need to be clearly and separately ascertained before policy constraints were applied.

3. Neither the Council nor the inspector undertook that exercise. The adopted figure of 11,000 dwellings was a policy-constrained figure rather than an objectively assessed need. The regional strategy material, housing-market assessment and interim projections did not supply the missing assessment. The inspector's recommendation was therefore affected by an error of law.

4. Paragraph 83 of the Framework retained the stringent requirement that exceptional circumstances must necessitate any alteration of an established Green Belt boundary. Its omission of the former policy's express reference to necessity did not change that composite test. General planning considerations were insufficient.

5. The sites' asserted lack of suitability for housing did not, without more, constitute exceptional circumstances. Their relevant characteristics had not materially changed since the inspector's earlier conclusion that they need not be returned to the Green Belt. The inspector had therefore failed to establish a Green Belt reason capable of justifying the alteration.

6. The cross-appeal was allowed to the extent of varying the remedy. Because the errors originated in the Council's preparation of the plan, a further examination by another inspector could not cure them. The affected parts of the plan were remitted to the Council for reconsideration and correction rather than quashed.

• Court of Appeal (Civil Division): Dismissed the Council's appeal. Allowed the developers' cross-appeal to the extent of directing that the defective parts of the local plan be remitted to the Council rather than to the Planning Inspectorate.

• High Court, Planning Court: Hickinbottom J upheld the developers' statutory challenge in a judgment delivered on 30 April 2014. By an order dated 15 May 2014, he treated the defective parts of the plan as not adopted and remitted them for re-examination by a different inspector.