Leech Homes Ltd v Northumberland County Council

Where a strategic development-plan policy establishes the general extent of a proposed Green Belt but leaves detailed boundaries to a later local plan, the decision-maker must begin with that policy and treat the land as capable of falling within the Green Belt. The decision-maker must then ask whether there is a good or sufficient reason to conclude that the land will ultimately be excluded. This requires planning judgment, including assessment against the Green Belt purposes and relevant emerging plans or site-specific features. The approach is rebuttable and does not permit development control to usurp plan-making. Earlier decisions based on an incorrect legal understanding of the strategic policy need not be followed. In the Upper Tribunal’s original jurisdiction on a certificate of appropriate alternative development appeal, its power to award costs did not extend to such an appeal absent unreasonable behaviour.

Land belonging to Leech Homes Ltd was compulsorily acquired for the Morpeth Northern By-pass. Leech Homes applied to Northumberland County Council for a certificate of appropriate alternative development concerning a proposed residential scheme of about 135 dwellings. The Council refused the certificate, treating the land as subject to Green Belt policies. The Upper Tribunal dismissed the appeal under section 18 of the Land Compensation Act 1961, holding that Policy S5 of the Joint Structure Plan had generally extended the Green Belt and that Green Belt policies applied.

Leech Homes appealed on the proper approach to land within the general extent of an undefined Green Belt and on the relevance of consistency with earlier planning decisions. It also appealed the Upper Tribunal’s order requiring it to pay the Council’s costs. The central issues were whether the Upper Tribunal had applied the correct planning-law approach and whether rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 authorised the costs order.

1. Green Belt issue. The appeal concerning the certificate of appropriate alternative development was dismissed. Policy S5 was part of the development plan and was operative and effective to extend the Green Belt generally, although its detailed boundaries remained to be fixed by a local plan. The interpretation of Policy S5 was a question of law, while its application to the particular site required planning judgment.
2. The correct approach was two-stage. The decision-maker must first start with the strategic policy and recognise that land within its general extent is capable of being Green Belt land. It must then consider whether there is a good or sufficient reason not to apply Green Belt policies because the land would ultimately be excluded when the boundaries were fixed. Relevant matters include the five Green Belt purposes, emerging plans and site-specific features. The approach is rebuttable and is not a blanket presumption.
3. Plan-making and development control are distinct functions. A site-specific decision should not pre-empt the plan-making process. The Upper Tribunal was exercising an original jurisdiction under section 18(2) of the Land Compensation Act 1961, rather than reviewing the Council’s legality, and had to decide for itself what Policy S5 meant and apply it correctly in the no-scheme world. Its conclusion that there was no sufficient reason not to apply Green Belt policies was a planning judgment and disclosed no public-law error.
4. The Upper Tribunal was entitled to disregard earlier decisions resting on an erroneous legal premise about Policy S5. Consistency did not require a decision-maker to repeat earlier mistakes. The approach was consistent with Wedgewood v City of York Council [2020] EWHC 780 (Admin), which treated the strategic policy as the starting point and proceeded to emerging-plan and site-specific assessment.
5. Costs issue. The costs appeal was allowed. Rule 10(6)(a) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 was confined to proceedings for compensation for compulsory purchase, in the context of disputes referred under section 1 of the Land Compensation Act 1961, rather than appeals against certificates of appropriate alternative development under section 18. The transfer of CAAD appeals to the Upper Tribunal did not enlarge its power to award costs. The Upper Tribunal therefore lacked power, absent unreasonable behaviour, to make the costs order against Leech Homes.

• Court of Appeal (Civil Division) [2021] EWCA Civ 198: dismissed the appeal concerning the certificate of appropriate alternative development and allowed the appeal concerning costs.
• Upper Tribunal (Lands Chamber) [2020] UKUT 150 (LC), [2021] RVR 21: dismissed Leech Homes’ appeal against the Council’s certificate decision.
• Upper Tribunal (Lands Chamber) [2020] UKUT 328 (LC), [2021] RVR 34: ordered Leech Homes to pay the Council’s costs.