Leech Homes Ltd v Northumberland CC

The Court of Appeal considered two issues on appeal: (1) whether land subject to a strategic regional policy (Policy S5) that identified the general extent of a proposed green belt extension should be treated as land to which green belt policies apply for the purposes of assessing compensation on compulsory acquisition and on an application for a certificate of appropriate alternative development (a CAAD); and (2) whether the Upper Tribunal (Lands Chamber) had power under the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (rule 10) to order the unsuccessful CAAD appellant to pay the acquiring authority's costs.

The court confirmed that where a high level development plan policy establishes the general extent of a green belt extension, the decision-maker must start from that policy and assume the land is capable of being green belt unless there is a sufficient/site-specific reason to conclude it would be excluded when precise boundaries are later fixed in a local plan. That two-stage approach involves: (a) treating the strategic policy as operative so the land is 'capable' of being green belt; and (b) applying planning judgment on site-specific matters and relevant emerging local plan material to decide whether there is confidence the land would ultimately fall outside the green belt. Applying that approach, the Court of Appeal agreed with the Upper Tribunal that the appellant's land should be treated as green belt land and therefore the Council had been right to refuse to treat the site as suitable for the proposed residential CAAD.

On costs, the court held that the Upper Tribunal had no power to make the costs order it made in respect of a CAAD appeal. Rule 10(6)(a) should be read as limited to proceedings that are within the historic scope of proceedings "for compensation for compulsory purchase" (not including CAAD appeals), and the statutory and rule changes did not intend silently to transfer the long-standing costs practice in CAAD appeals to an expanded discretion in the Tribunal. The costs appeal was therefore allowed.

Background and procedural posture: Leech Homes' land was compulsorily acquired for a by-pass. Leech Homes applied for a CAAD seeking to establish that a hypothetical planning permission for about 135 dwellings would have been granted in a "no scheme" world (launch date 9 August 2012). The local planning authority refused the CAAD on the basis that green belt policies applied. Leech Homes appealed to the Upper Tribunal (Lands Chamber) which agreed with the Council that Policy S5 (a strategic structure plan policy proposing a general extension to the green belt around Morpeth) meant the land should be treated as green belt unless there was good reason to treat it otherwise; the UT dismissed the CAAD appeal. The UT also ordered Leech Homes to pay the Council's costs. Both aspects were appealed to the Court of Appeal.

Nature of relief sought: (i) quashing or overturning the UT's decision that green belt policies applied to the land such that the CAAD should be refused; (ii) overturning the UT's costs order against Leech Homes.

Issues framed by the court:

• whether a high-level strategic policy showing the general extent of a proposed green belt (Policy S5) operates to require that land within that general extent be treated as green belt for decision-making on planning applications or CAADs unless there is sufficient reason to the contrary; and
• whether the UT had jurisdiction under rule 10 of the Upper Tribunal (Lands Chamber) Rules 2010 to award the Council its costs in a CAAD appeal.

Court's reasoning (concise): The court emphasised that planning decisions must be made in accordance with the development plan (Planning and Compulsory Purchase Act 2004 s.38(6)) unless material considerations indicate otherwise. A strategic policy that identifies the general extent of a green belt (even without fixed detailed boundaries) establishes that the land is capable of being green belt. The correct method is a two-stage approach: (1) start from the operative strategic policy and assume the land is potentially green belt; (2) exercise site-specific planning judgment, taking account of emerging local plan material and other relevant evidence, to determine whether there is sufficient reason to conclude the land would not be green belt once precise boundaries are fixed. The UT had applied that approach, considered the five green belt purposes in the NPPF, and concluded there was no sufficient reason to exclude Leech Homes' land from green belt designation. On costs, the court analysed the statutory framework (Land Compensation Act 1961 including s.1, s.4 and s.17; Tribunals Courts and Enforcement Act 2007 s.29) and the genesis and intended scope of rule 10 of the Procedure Rules. The court concluded that rule 10(6)(a) was not intended to capture CAAD appeals and that the UT therefore lacked power to make the costs order it did; any change to that position should be made by the Tribunal Procedure Rules Committee.

Wider implications: the judgment clarifies how decision-makers should treat land identified within the general extent of a proposed green belt in a strategic plan and limits the Upper Tribunal's power to award costs in CAAD appeals unless rule or statutory amendment is made.

The Court of Appeal dismissed the substantive CAAD appeal (Leech Homes' challenge) and allowed the separate appeal on costs. Rationale: the court endorsed the UT's two-stage approach to applying a high-level green belt policy (treat the land as capable of being green belt then apply site-specific planning judgment to see if there is sufficient reason to exclude it) and concluded that the UT was entitled to treat the appellant's land as green belt; but the court concluded that the UT did not have power under rule 10 of the Upper Tribunal (Lands Chamber) Rules 2010 to make the costs order it had made in a CAAD appeal, so the costs order was set aside.

The CAAD decision was considered by the Upper Tribunal (Lands Chamber) ([2020] UKUT 150 (LC)); the UT also made a separate decision on costs ([2020] UKUT 328 (LC)). Both UT determinations were appealed to the Court of Appeal which delivered judgment at [2021] EWCA Civ 198, allowing the costs appeal and dismissing the substantive CAAD appeal.