Exceptional circumstances

‘Exceptional Circumstances’

Planning law states that Green Belt boundaries may only be changed in ‘exceptional circumstances’. This statement is repeated in the National Planning Policy Framework (NPPF) at para 83:

‘Once established, Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan. At that time, authorities should consider the Green Belt boundaries having regard to their intended permanence in the long term, so that they should be capable of enduring beyond the plan period.’

What does this statement mean?

The judge in the St Albans v Hunston Pties case said:

‘The Framework was published by the Government in order to set out its planning policies for England, so as to give guidance to local planning authorities and other decisions-makers in the planning system. It was seen by the Minister for Planning as simplifying national planning guidance “by replacing over a thousand pages of national policy with around fifty, written simply and clearly.” Unhappily, as this case demonstrates, the process of simplification has in certain instances led to a diminution in clarity.’

This is the link to the St Albans case:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/1610.html&query=st+and+albans+and+v+and+hunston&method=boolean

It turns on what circumstances are considered exceptional.

GBC’s opinion

Guildford Borough Council (GBC) has stated what it considers to be the meaning of ‘exceptional circumstances’. It can be found at   Appendix 4b Sub Appendix A Joint Scrutiny Committee Resolution 8 published in connection with the Scrutiny Committee on the draft Local Plan.

Appendix 4 – exceptional circumstances

There is no definition of what constitutes exceptional circumstances, as this will vary locally. Legal advice suggests that it is likely to be interpreted as circumstances arising that are not commonplace. We consider that a combination of factors exist locally that together constitute exceptional circumstances that enable us to take the decision to amend our Green Belt boundaries. This includes the high level of housing need, including affordable homes, exacerbated by a significant backlog of unmet need, the lack of suitable alternative land, the general lack of affordability across the borough and issues with housing mix. Additionally we need to consider the consequences of not amending our Green Belt boundaries which would be to significantly worsen an already difficult housing position, and the consequential economic situation.’

The opinion of the Courts

 The Court of Appeal laid down the meaning of the words ‘exceptional circumstances’ in the context of plannign law as long ago as 2001 in the COPAS case:  COPAS & Anr v Royal Borough of Windsor and Maidenhead  February, 2001

You can read the case by following this link:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/180.html&query=COPAS&method=boolean

The Court is the second highest court in the land. Three judges sit to hear cases. Its opinion is therefore authoritative.

This is what Simon Brown LJ ruled in para 40

‘I would hold that the requisite necessity in a … case like the present – where the revision proposed is to increase the Green Belt – cannot be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event.    Only then could the continuing exclusion of the land from the Green Belt properly be characterised as “an incongruous anomaly”.’

This case was cited as a leading precedent by the judge in the Gallagher case only a few months ago.

Gallagher v Solihull April, 2014 (High Court England & Wales)

You can read this case by following this link:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2014/1283.html&query=gallagher+and+v+and+solihull&method=boolean

The judge in that case said:

At para 125

“The test for redefining a Green Belt boundary has not been changed by the NPPF.” “… 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.”

‘ For redefinition of a Green Belt, para 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 para 83 of the NPPF, the test remains the same.’

‘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.’

‘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.’

At para 130 he stated:

‘In other words, something must have occurred subsequent to the definition of the Green Belt boundary that justifies a change. The fact that, after the definition of the Green Belt boundary, the local authority or an inspector may form a different view on where the boundary should lie, however cogent that view on planning grounds, that cannot of itself constitute an exceptional circumstance which necessitates and therefore justifies a change and so the inclusion of the land in the Green Belt (see Hague at [32] per Collins J. Collins J in Hague held that, in addition to the undoing of an assumption on which the original decision was made, a clear error in excluding land from the Green Belt is sufficient, no such error is suggested here; and I need not consider that aspect of Hague further.)’

At para 131 he stated:

‘COPAS is, of course, binding upon me. Mr Dove said that these cases are fact-sensitive, and the facts of that case were very different from this. That is true; but, in the passage I have just quoted from Simon Brown LJ’s judgment, he was clearly and deliberately determining, as a matter of principle, what “exceptional circumstances” required, as a matter of law, in a case such as this. It is expressly a holding, with which the whole court agreed. I am consequently bound by it. In any event, it seems to have been consistently applied for over ten years; and, in my respectful view, is right.’

‘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.’

Your opinion?

Which of these interpretations do you think is objectively correct? GBC no doubt prefer their own opinion. But it is their own subjective opinion. It is for the courts to interpret the meaning of the policy.

The judge in the Gallagher case stated:

‘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.’

Some unique exceptional circumstances in Guildford

You may wish to consider if these circumstances are out of the commonplace and exceptional:

1)     The publication of a draft local plan without having first established the Housing Requirement figure

2)     The publication of a draft local plan without having completed a transport strategy

3)     The promotion of a ‘new town’ at Wisley – without asking and answering the logically prior question: does GBC need a new town?

4)     The inclusion of just one site for a new town in the draft local plan without any consideration of any other sites – or any public competition between sites

You might wish to consider whether these exceptional circumstances are consistent with Guildford Code of Conduct and Probity in Planning Code?

How was it that the private interest of the developer of Three Farms Meadow (aka Former Wisley Airfield) was promoted in the draft local plan – and mentioned in the first few paragraphs of the drafts of the document?

You might expect that since the Lead Councillor for Planning was elected on the basis, inter alia, of her statements that she was a barrister that she would be fastidious in ensuring that all the sites in the draft local plan can be justified by exceptional circumstances.

You might expect that the Council would be fastidious in applying its Codes.

To include sites for which no exceptional circumstances can be shown would be reckless.

Has not the Council been exposed to the risk of adverse judicial review of its decisions? Was this a good use of public money?

 

 

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