And so it continues-Jotmans Farm and the Castle Point Local Plan 2016

Two recently added pieces of correspondence have been added to the CPBC Planning Portal website regarding the Jotmans farm proposal.

Jotmans Magaret March

Jotmans Farm

The Inquiry is still in the hands of the Secretary of State for decision.

It appears he has asked both CPBC and the appellant if and how recently decided Inquiries may have affected the Jotmans Farm current situation.

Castle Point Council responded;

The Borough Council has been requested, on behalf of the Secretary of State, to comment on the implications (if any) for the present appeal awaiting determination of the judgment of the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes and the Secretary of State (etc) [2016] EWCA Civ 168.
The Borough Council fully recognises that this was an important and significant judgment, in its own context.  However the Council’s essential position is that the judgment does not have any material application to the particular circumstances arising in Castle Point, in relation to an appeal scheme proposing large scale development on ‘virgin’ (i.e. never previously developed), open Green Belt land.
That the land here is long-established Green Belt, to which national (NPPF) and local Green Belt policies apply, follows directly from the Court of Appeal’s judgment in the case of Fox Land & Property v Secretary of State [2015] EWCA Civ 298, in which the court upheld the Secretary of State’s decision to refuse permission for housing development on another, similar (but smaller) piece of open Green Belt land in this Borough.
The background to the Council’s view that the Suffolk Coastal judgment is not relevant to the present appeal can be summarised as follows:

In this case the Council accepts (and accepted at the inquiry) that its current Local Plan is out of date.
 The Council accepts (and did at the inquiry) that it does not currently have a five year housing land supply, measured against objectively assessed need [the background to how this situation came about was fully explored at the inquiry]
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 The Council does not dispute (and did not previously) what can be seen to be the Court of Appeal’s view (in Suffolk Coastal) of how paragraphs 49 and 14 of the NPPF, taken together, should be interpreted.
 What the Council in the present case relies on is the clear indication in NPPF para. 14 that, in decision-taking, what might otherwise be a ‘presumption in favour of sustainable development’ does not apply where ‘specific policies in [the] Framework indicate development should be restricted’, with its direct reference, via footnote  9, to land designated as Green Belt.
 The ‘specific policies’ in the NPPF in relation to Green Belt make clear the great importance the Government attaches to Green Belts; that the ‘fundamental aim’ of Green Belt policy is to keep the relevant land permanently open; that the essential characteristics of green belts are their openness and their permanence (para. 79).  The Government’s underlying policy in this regard could hardly be clearer.
 Further NPPF policy makes it clear that, once established, green belt boundaries should only be altered in exceptional circumstances, and then only through preparation or review of the Local Plan; and while the green belt remains in existence, and open (as it should do, as a matter of policy, permanently), inappropriate development within it should only be permitted in very special circumstances.
 In addition to the NPPF policies, the Government has clarified matters yet further through the issue of the Planning Practice Guidance (PPG), several paragraphs of which are directly relevant to the present case.  PPG para. 034 makes it expressly clear that, in decision taking, unmet housing need is unlikely to outweigh harm to the Green Belt and other harm, so as to constitute ‘very special circumstances’ justifying inappropriate development.
 Further, paragraphs 044 and 045 of the PPG make it clear again that, even in the context of local plan preparation, housing and economic needs will not override the constraints of established Green Belt, other than in exceptional circumstances.
 The Council, whose area contains significant amounts of (hitherto permanently open) established Green Belt, places strong reliance on these clear and consistent statements of Government policy.
 There is nothing at all in the Suffolk Coastal judgment which suggests or implies that the Court of Appeal’s view is that the Government’s policy of permanently protecting the openness of established Green Belt is somehow rendered ‘out of date’ by a current absence of a five year housing land supply in a particular district.
 It is clear from Government policy that green belt protection is strategically and permanently important; it would produce an irrational result if protection of the openness of the green belt were to be regarded as ‘out of date’, and therefore to be overridden, in particular areas, just because of inherently transient current states of affairs in relation to land supply provision.  The Court of Appeal in Suffolk Coastal did not say anything which would justify such an interpretation,
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which would run directly counter to the clearly expressed Government policy about the Green Belt.
In conclusion therefore, the Suffolk Coastal judgment does not say anything which adversely affects the Council’s case on this present appeal, in relation to the open green belt land south of Jotmans lane, Benfleet.
Finally, the Council has helpfully been provided with a copy of the comments made by Ms Parsons of Pegasus Group, dated 10th May 2016, on behalf of the appellant in the current appeal, in response to the Secretary of State’s request for observations about the implications of the Suffolk Coastal judgment.
Having had the opportunity to consider Ms Parsons’ comments, the Council does not consider that there is a need for it to make further comments itself in reply, or to amend the representations set out above.

The Appellant responded thus;

Thank you for the opportunity to comment on the implications of the recent judgment in Richborough Estates –v- Cheshire East Borough and SSCLG and Suffolk Coastal District Council –v- Hopkins Homes Limited and SSCLG  [2016] EWCA Civ 168 for this appeal.
This judgment relates to the interpretation of the relevant policies for the supply of housing and the subsequent treatment of such policies in the planning balance in the absence of a five year housing land supply.  As part of this appeal, the appellant submitted evidence on all of these matters and I will turn to those matters in a little more detail below.
It may first be observed that neither case involved the green belt directly. However there are a number of observations which are of relevance for all planning appeals. The references in parenthesis refer to paragraph numbers of the judgment to which I would wish to make reference.
Firstly, the Government’s commitment to the “plan-led” system” [9] anticipates that plans should be kept up-to-date. Further, by reference to the NPPF, paragraph 12, the policy is clear that “[it] is highly desirable that local planning authorities should have an up-to-date plan in place” [12]. I would observe that the Castle Point Local Plan dates from 1998 and is out of date both having regard to the time horizon it was intended to cover and its failure to identify where its housing needs will be met.
Secondly, the court considered whether a “narrow”, “wider”, “comprehensive”, “intermediate” or “compromise” interpretation ought to be given to paragraph 49 of the NPPF. Both having reviewed the relevant authorities and considered the matter afresh for itself the court was clear that the appropriate approach is to adopt the wider interpretation. See in particular paragraph [32] of the judgment. The narrow interpretation of this policy was considered by the court to be “plainly wrong” [34]. The intermediate or compromise interpretation of paragraph 49 was similarly rejected [38].
In addition, the terms of paragraph [33] are relevant to the interpretation of the concept of “policies for the supply of housing”. That would include, among other designations, green belt designation. That is clearly relevant to the consideration of this case. The court noted that the NPPF identifies a number of specific policies indicating that development should be

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restricted. Examples are contained in footnote 9 of the NPPF [39]. However, the “NPPF is a policy document. It ought not to be treated as if it had the force of statute” [42].
The court went on in paragraph [44] to identify the simple sequence of steps for dealing with proposals for housing development. It is to be noted that the policies in paragraphs 14 and 49 of the NPPF do not make “out of date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight ought to be given to that specific issue [46]. However, the court went on to observe [47] that  “ One may, of course, infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out-of-date policies for the supply of housing will normally be less than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a “green wedge” or of a gap between settlements…”
I would observe in respect of the case at appeal that the extreme extent of the housing land supply shortfall (referred to below), its long duration in the absence of any identified means for its rectification remain highly relevant to any determination.
Clearly, the court went on in [47] it will be “for the decision maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out of date”. That is, with respect a simple restatement of long-standing legal principles relating to planning decision making.
In this appeal, it is common ground between the parties that Castle Point Borough Council does not have a five year land supply.  The parties disagreed about the extent of the shortfall with the Council quoting 1.6 years and the appellants quoting between 0.4 – 0.8 years.  All of this was tested at the public inquiry and set out in the appellants’ closing submissions.
The appellants consider that it is clear on any measure that the Council has a substantial shortfall in its five year housing land supply requirement and that this should be afforded significant weight in the decision-making process.  This was argued by the appellants at the time of the inquiry and was again referred to in the closing submissions.
This judgment confirms that it is right for a decision-maker to take into account the extent of the housing shortfall when applying the planning balance.  There is sufficient information in the appeal documents to assist the Secretary of State in this process.
It was agreed between the parties that the Council does not have any specific Green Belt policies that relate to the proposed development and as such the policies of the National Planning Policy Framework are relevant.  The appellants consider that the judgment does not override the need to apply the test of Very Special Circumstances detailed in the NPPF to this proposal.  As part of this process it is necessary to acknowledge in this case that the Council has a very substantial housing land supply deficient. Indeed, no other green belt authority was identified as having the magnitude of shortfall as great as that identified in Castle Point, nor a shortfall that has persisted for as long a period of time. This was the case put forward by the appellants at the inquiry.

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It is for the Secretary of State to weigh the impact of the proposal on the Green Belt against the benefits derived from the scheme.  These benefits include but are not limited to delivering a substantial amount of housing in a district that has a significant shortfall in housing supply (including affordable housing).  The evidence put forward by the appellants at the time of inquiry considered this matter in great detail and concluded that the harm by reason of inappropriateness and any other harm was outweighed by the benefits of the proposal, which included the supply of much-needed housing.  The judgment does not alter this essential feature of the case put forward by the appellants.
In summary, the appellants consider that the evidence provided for this appeal and tested at inquiry provides the Secretary of State with sufficient information to allow him to determine this appeal in light of this judgment.


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