Draft Local Plan Review

This is not agreed in relation to Challenge B as it establishes a subjective test which implicitly secures a brake on housing provision for extraneous needs. By having a test which says more housing except if there is an adverse effect artificially limits provision to meet demand arising outside the Borough. That external demand will find its way into the borough whether housing land is provided or not. If it is not catered for it will simply contribute to a combination of house price rises and ripple effect migration, both of which run counter to Government sustainability policies.

Whilst the first priority being given to non Green Belt land is considered to be appropriate nad now in line with the recent White paper it is felt the Green Belt hierarchy is in appropriate. For Green Belt sites a testing involving impact on openness and accessibility to facilities, including reference to travel to work patterns should be employed in order to secure an appropriate ordering for release. The current approach set out the spatial strategy choices at paragraph 96 (b) has an arbitrariness not well related to the purposes of the Green Belt. An analysis which omits on a site by site basis and assessement on the openness regime and overall sustainability assessement would seem to be flawed.

IM Properties v Lichfield DC [2014] EWHC addresses the approach thus:-

' 90.
The case of Gallagher Homes v Solihull Metropolitan Borough Council [2014] EWHC 1283 deals with the test for redefining a green belt boundary since the publication of the NPPF. Paragraphs 124 and 125 of Gallagher read:


"124. There is a considerable amount of case law on the meaning of "exceptional circumstances" in this context. I was particularly referred to Carpets of Worth Limited v Wyre Forest District Council (1991) 62 P & CR 334 ("Carpets of Worth"), Laing Homes Limited v Avon County Council (1993) 67 P & CR 34 ("Laing Homes"), COPAS v Royal Borough of Windsor and Maidenhead [2001] EWCA Civ 180; [2002] P & CR 16 ("COPAS"), and R (Hague) v Warwick District Council [2008] EWHC 3252 (Admin) ("Hague"). "
125. From these authorities, a number of propositions are clear and uncontroversial.
i) Planning guidance is a material consideration for planning plan-making and decision-taking. However, it does not have statutory force: the only statutory obligation is to have regard to relevant policies.
ii) The test for redefining a Green Belt boundary has not been changed by the NPPF (nor did Mr Dove suggest otherwise).
a) In Hunston, Sir David Keene said (at [6]) that the NPPF "seems to envisage some review in detail of Green Belt boundaries through the new Local Plan process, but states that 'the general extent of Green Belts across the country is already established'". That appears to be a reference to paragraphs 83 and 84 of the NPPF. Paragraph 83 is quoted above (paragraph 109). Paragraph 84 provides:
"When drawing up or reviewing Green Belt boundaries local planning authorities should take account of the need to promote sustainable patterns of development...".
However, it is not arguable that the mere process of preparing a new local plan could itself be regarded as an exceptional circumstance justifying an alteration to a Green Belt boundary. National guidance has always dealt with revisions of the Green Belt in the context of reviews of local plans (e.g. paragraph 2.7 of PPG2: paragraph 83 above), and has always required "exceptional circumstances" to justify a revision. The NPPF makes no change to this.
b) For redefinition of a Green Belt, paragraph 2.7 of PPG2 required exceptional circumstances which "necessitated" a revision of the existing boundary. However, this is a single composite test; because, for these purposes, circumstances are not exceptional unless they do necessitate a revision of the boundary (COPAS at [23] per Simon Brown LJ). Therefore, although the words requiring necessity for a boundary revision have been omitted from paragraph 83 of the NPPF, the test remains the same. Mr Dove expressly accepted that interpretation. He was right to do so.
iii) Exceptional circumstances are required for any revision of the boundary, whether the proposal is to extend or diminish the Green Belt. That is the ratio of Carpets of Worth.
iv) Whilst each case is fact-sensitive and the question of whether circumstances are exceptional for these purposes requires an exercise of planning judgment, what is capable of amounting to exceptional circumstances is a matter of law, and a plan-maker may err in law if he fails to adopt a lawful approach to exceptional circumstances. Once a Green Belt has been established and approved, it requires more
than general planning concepts to justify an alteration."
91.
From that review it can be seen that there is no test that green belt land is to be released as a last resort. It is an exercise of planning judgment as to whether exceptional circumstances necessitating revision have been demonstrated.

92.
The interested parties emphasise the importance of section 39 of the Planning and Compulsory Purchase Act 2004 which imposes a duty upon the defendant and the

inspector when exercising their functions under part 2 of the Act in relation to local development documents. The section demonstrates that the achievement of sustainable development is an ongoing duty upon any body exercising its function under part 2 of the Act. Sustainable development is a concept which is an archetypal example of planning judgment.

93.
The duty to contribute to sustainable development imports a concept which embraces strategic consideration about how best to shape development in a district to ensure that proper provision is made for the needs of the 21st century in terms of housing and economic growth and for mitigating the effects of climate change. Inevitably, travel patterns are important. Both the SEA and the sustainability appraisal are important components in forming a judgment to be made under Section 39(2).

94.
As a result it is submitted that the green belt designation is a servant of sustainable development.

Discussion and conclusions

95.
In my judgement to refer to a falsification doctrine is to take the words of Simon Brown LJ out of context. To elevate the words that he used into a doctrine is to overstate their significance.

96.
What is clear from the principles distilled in the case of Gallagher is that for revisions to the green belt to be made exceptional circumstances have to be demonstrated. Whether they have been is a matter of planning judgment in a local plan exercise ultimately for the inspector. It is of note that in setting out the principles in Gallagher there is no reference to a falsification doctrine or that any release of green belt land has to be seen as a last resort.

97.
The only statutory duty is that in Section 39 (2) (supra). In that regard the contents of paragraph 84 of the NPPF are relevant. That says,


"84. When drawing up or reviewing Green Belt boundaries
local planning authorities should take account of the need to promote sustainable patterns of development. They should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt
boundary."
98.
That is clear advice to decision makers to take into account the consequences for sustainable development of any review of green belt boundaries. As part of that patterns of development and additional travel are clearly relevant.

99.
Here, the release from the green belt is proposed in Lichfield which is seen by the defendant as consistent with the town focused spatial strategy. The further releases have been the subject of a revised sustainability appraisal by the defendant. That found that no more suitable alternatives existed for development.

100.
The principal main modifications endorsed by the defendant expressly referred to the green belt review and to the supplementary green belt review as informing the release of green belt sites. They contained advice as to the relevant tests that members needed to apply. Both documents were available to the decision making committees and were public documents. Ultimately, the matter was one of planning judgment where the members had to consider whether release of green belt land was necessary and, in so determining, had to be guided by their statutory duty to achieve sustainable development.


101. The members were aware that they had originally been presented with the Deans Slade and Cricket Lane sites as directions of growth at a much earlier stage of the local plan development. As the sites were to the south of Lichfield members were advised that development there would have little impact on the setting of the city overall and there were few limitations beyond the policy constraint of green belt. However, the extent of concern about loss of green belt at that time meant that the plan was revised to reduce the amount of growth in that direction. The inspector had found that the defendant had failed to produce a sound plan with that approach. An alternative strategy of a new village had been considered by the inspector as a first stage of the examination process and he had found that that failed to outperform the council's preferred strategy. The members were entitled to take all of those factors into account in concluding whether there was a necessity to propose to release sites from the green belt.
102.
In my judgment, the members were aware of the test which they had to apply through the content of the documents before them together with their experience and knowledge as members of a council where a significant amount of its land was within the green belt. They were entitled to take into account the genesis of the plan and the inspector's findings in concluding that in their view there were exceptional circumstances for a green belt revision. The main modifications endorsed show, in my judgment, that the defendant grappled with matters set out in the NPPF, their duty under Section 39 and the request by the Inspector to remedy shortcomings in their Development Plan.

103.
Further, the letter from Deloitte of the 6th January 2014 which was sent to members of the Environment and Development (Overview and Scrutiny) Committee, albeit on the part of the claimants, was absolutely clear as to the correct approach to adopt. It rightly said that exceptional circumstances had to be demonstrated. It is odd, in those circumstances, for the claimant to make the submission that the defendant throughout misunderstood, misinterpreted and/or was misled as to the relevant test to apply. This ground fails. '

In the context of the above it is considered the approach set out in paragraph 96 of the Draft Local Plan Review is flawed and the proposed allocations derived from it need to be re-tested

The approach to Blythe Valley Park is not supported. It is introducing support for uses in a location which is essentially is unsustainable and whilst the generally poor take up of the original commercial development is probably disappointing to the developers this should not be used as a valid justification for promotion of further classes of development in an unsustainable location.

No. For its implementation it is seeking to turn on a Supplementary Planning Document. The matters addressed in P4 are complex matters which can be resolved only if properly tested by the full formal Statutory Planning Process. The policy needs to be wholly revamped in order that its full ramifications can be properly tested by the Statutory Planning process. Paragraph 153 of the National Planning Policy framework states:-

"Supplementary planning documents should be used where they can help applicants make successful applications or aid infrastructure delivery, and should not be used to add unnecessarily to the financial burdens on development."

It is submitted that Policy P4, by relying on SPDs for the detailed articulation of the policy, breaches this national policy.

The level of affordable housing seems very high at levels only justifiable in the exceptional circumstances of the London Housing Market. The actual level of the different types of affordable housing, including those emerging as a result of the recent White Paper, that are to be sought need to be tested in a robust way. This testing should be alng tow perspectives - (a) dimensioning need and (b) assessing viability for different classes of site. The testing results need to be spelt out in the reasoned justification and backed up by an appropriate evidence base

Option 2 is favoured but the amount that is sought should reflect the evidence of demand for custom housing - as is required under the legislation. The reasoning for this view stems from the fact that larger sites can accomodate the necessary flexibility for meeting the vicissitudes of the custom house building process.

It is considered the contribution that Solihull is making to the Housing Market Area needs is very modest. At 2000 dwellings this contribution to needs (which is almost exclusively generated by a shortfall in Birmingham, represents some 5.4% of the total shortfall. For Birmingham based households unable to secure housing within the City the natural choice of search will embrace Solihull, and unless provision is increased to accommodate a more realistic proportion, will result in a distortion to the housing market and a degrading of the preferred sustainable pattern of development as Birmingham migrants will occupy dwellings as close as to their work and social connections and exacerbating a ripple effect. The latter will be detrimental to a sustainable pattern of development. Within this context a share of the unmet need should be proportionate to the actual working of the housing market. A figure of 20% of the unmet need (say 7500) should be accommodated in Solihull, with the remainder being accommodated in the other 4 non Black Country authorities adjoining. This points to an increase in housing provision of some 5500 above that set out in Policy P5.

It is considered the location of allocated sites needs to be altered to include land at the rear of 114 - 118 Widney Manor Road. This site, which a previous appeal decision (APP/Q4625/A/10/2133554/NWF) found to be able to satisfactorily accommodate some 20 dwellings in respect of the relationship to juxtaposition of buildings, highway safety, and ecological impact does not appear as a specified site. There is documentation (page 332 of the SHELAA Appendix B) which indicates surrounding land which another promoter (Ms. Savage on behalf of Mr. Shield) submitted without agreement of my clients (the owners of 114 - 118 Widney Manor Road) which indicates that the land may have been erroneously omitted from the analysis of the chosen sites. There appears from the Sustainability Appraisal to be no systematic analysis of all potential sites to indicate whether the requirements of S39 (ii) of the Planning and Compulsory Purchase Act 2004 have been fulfilled. (Further analysis is given in objection related to Q3 Spatial Strategy) The absence of comprehensive analysis and compliance with statute and policy indicates a need to re-run the work underlying the sustainabability appraisal accompanying the draft plan if it is to meet legal requirements.

Notwithstanding the above the Green Belt analysis for the locality of 114 - 118 Widney Manor Road is considered to be wholly inappropriate. The land between Widney Manor Road and the Railway Line is an area of developed land at very low density and for analytical purposes it is embraced by parcel RP32 which is almost all open fields. It is submitted that this coarse granularity is unreasonable in the circumstances. The site tabled in the SHELAA (Number 134) is not one which contributes in any material degree to essential objective of Green Belt policy, and it is therefore considered to be (as has been previously submitted) a suitable candidate for release from the Green Belt.

Having regard to the foregoing the Council is invited to reconsider the process by which sites have been sieved and assessed for sustainability.

For reasons set out in response to Question 15 it is considered that the omission of SHELAA site 134 represents a retrograde step in relation to the achievement of a sustainable transport pattern. It is very well located in relation to the rail link to central Birmingham and elsewhere.

It is considered that the Proposals Map should be altered to exclude from the Green Belt all land between Widney Manor Road and the railway line in the vicinity of 114 -118 Widney Manor Road in order to facilitate allocation of the site as housing land. It is suggested that this apply to all the ribbon of development surrounding and to the north of Widney Manor Station.

This note invites officers concerned with the Local Plan to visit the site.