Keep Bourne End Green v Buckinghamshire Council (formerly Wycombe District Council)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 23 July 2020 |
| Neutral Citation | [2020] EWHC 1984 (Admin) |
| Date | 23 July 2020 |
| Docket Number | Case No: CO/3809/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1984 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Holgate
Case No: CO/3809/2019
and
Mr. James Burton (instructed by the Claimant directly) for the Claimant
Mr. Paul Brown QC and Mr Guy Williams (instructed by Sharpe Pritchard LLP) for the First Defendant
Ms. Estelle Dehon (instructed by Government Legal Department) for the Second Defendant
Mr. John Litton QC (instructed by Eversheds Sutherland LLP) for the First Interested
Party The Second Interested Party did not appear
Hearing dates: 23 rd – 24 th June 2020
Approved Judgment
Introduction
The Claimant, Keep Bourne End Green, applies under s.113 of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) to challenge the decision by Wycombe District Council on 19 August 2019 to adopt the Wycombe District Local Plan (2013 – 2033) (“the Plan”). On 18 March 2020 Lang J granted permission to apply for statutory review on grounds 1, 2, 3 and 5 (and the reasons challenge under ground 6 limited to errors alleged in those preceding grounds). On 1 April 2020 the District Council, along with the County Council and all other district councils in Buckinghamshire were abolished and replaced by a single unitary authority, Buckinghamshire Council (the Buckinghamshire (Structural Changes) Order 2019 – SI 2019 No. 957). This authority has become the First Defendant as the statutory successor to Wycombe District Council. All the relevant steps were taken by the former district council and the Buckinghamshire Council is merely its statutory successor. Because there is no need in this claim to draw any distinction between the two, it is convenient to refer to them as “the Council”.
The Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) appears as the Second Defendant. It was the Secretary of State's Inspector who carried out and reported to the Council on the statutory examination of the submission draft of the Plan. The First Interested Party, Catesby Estates Limited (“Catesby”) has an option over land at Holland Farm, Bourne End, which forms part of the allocation the subject of these proceedings. Mr. Noe, the Second Interested Party, owns part of the land allocated, but did not appear at the hearing.
This challenge is mainly concerned with alleged errors of law by the Inspector and the Council in the approach taken to two matters: (1) whether the 2016-based household projections produced by the Office for National Statistics (“ONS 2016”) should have been taken into account in the assessment of the “objectively assessed housing need” (“OAHN”) for the district and (2) the identification of “exceptional circumstances” to justify the release of green belt land through a review of green belt boundaries.
Policy BE2 of the Plan (read together with Policy CP8) removes from the green belt a site of about 32 ha at Hollands Farm (“the site”) and allocates the majority of the site for housing (about 467 dwellings). The built-up area of Bourne End lies to the west and north of the site, the “semi-rural” area of Hawks Hill and Harvest Hill lie to the east and ribbon development runs along Hedsor Road to the south. The site is mainly agricultural land but there is also a former orchard.
The Claimant is a charity set up to conserve and improve the natural and physical environment and to promote sustainable development. The Council's proposal to allocate site BE2 has been strongly opposed by residents of the local area. The Claimant has devoted considerable resources to advancing objections in the local plan process. This has included evidence to the examination from a team of expert consultants. Some of the issues raised are referred to in these proceedings. But it is important for the court to emphasise at the outset that its role is not to consider the merits of the Council's proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.
The district of Wycombe is subject to substantial planning constraints. About 48% of the total area lies within the Green Belt and about 71% lies within the Chilterns Area of Outstanding Natural Beauty (“AONB”).
In January 2016 the four district councils in Buckinghamshire, namely Aylesbury Vale, Chiltern, South Bucks and Wycombe decided that they would treat the combined area of their four districts as the Housing Market Area (“HMA”) and the Functional Economic Market Area (“FEMA”) for the evidence base and assessment of residential and employment needs used in the preparation of their local plans. In so doing they applied the guidance in paragraphs 159 and 160 of the National Planning Policy Framework published in 2012 (“the NPPF 2012”).
The Buckinghamshire Housing and Economic Development Needs Assessment 2015 (“HEDNA”) was published at the beginning of 2016. Using the 2012-based household projections published by DCLG in February 2015 as the “starting point” for assessing OAHN, the Council concluded that the OAHN for Wycombe over the period 2013–2033 was 15,100.
In mid-2016 updated ONS 2014-based population projections and DCLG household projections were published. These resulted in the updating of the HEDNA in September 2017, when the OAHN was reduced to 13,200. The draft Plan submitted to the Secretary of State on 28 March 2018 for examination was based upon that OAHN figure. The submitted Plan was also based upon a Housing and Employment Land Availability Assessment (“HELAA”) produced in September 2017, which identified a land supply within the district which providing 10,927 dwellings up to 2033. This included 1,139 dwellings on 10 sites to be released from the Green Belt. One of those sites was the land at Hollands Farm. That left a shortfall of 2,273 dwellings to meet the OAHN for the district.
On 13 July 2017 the four Buckinghamshire District Councils had entered into a Memorandum of Understanding pursuant to their duties under s.33A of PCPA 2004 to co-operate with each other in the planning of sustainable development. They agreed that the OAHNs for their districts was as follows:-
Aylesbury Vale
19,400
Chiltern and South Bucks
12,900
Wycombe
13,200
45,500 dwellings
They also agreed that Aylesbury Vale would provide 8000 dwellings, in addition to meeting its own OAHN of 19,400, to supply 5,725 dwellings towards the OAHN for the districts of Chiltern and South Bucks and 2,275 dwellings towards the OAHN for Wycombe, so that the distribution would be as follows:-
Aylesbury Vale
27,400
Chiltern and South Bucks
7,175
Wycombe
10,925
45,500 dwellings
The agreed approach of the four councils was that housing needs of each local plan area would fall to be met within that area first. But if that were shown not to be possible, then unmet need would be fulfilled elsewhere within the HMA “where it was reasonable to do so and was consistent with achieving sustainable development.” In the same spirit of co-operation, the HELAA undertaken by each district council employed an agreed, common methodology. All local plan periods had the same end date of 2033.
Very sensibly the four councils also co-operated on the approach they would take to considering whether land should be released from the green belt through a review of green belt boundaries. Paragraph 2.3 of the Memorandum of Understanding records:-
“As part of ensuring that all reasonable options have been explored to meet housing and economic needs in the preparation of the Councils' Local Plans it was agreed between the Councils that an assessment of the Green Belt be undertaken. A jointly commissioned Buckinghamshire Green Belt Assessment (the Part 1 assessment) was therefore undertaken on the basis of an agreed methodology to examine the degree to which each District's designated Green Belt meets Green Belt purposes. In addition the Green Belt Assessments Part 2 undertaken by the constituent district councils have identified potential Green Belt sites that could be considered for development.
Agreement
1. The methodology and outcomes of the Green Belt Part 1 work are agreed.
2. That all the parcels/sub parcels of land recommended in the Part 1 assessment for further consideration be assessed in the Green Belt Part 2 assessments as well as other options that each council considers to be appropriate for their respective plan areas.”
The examination of the Plan for Wycombe district ran between 16 July and 26 September 2018. Not long before the examination started, the ONS published 2016 sub-national population projections which projected growth in the population of the district of 9,446 persons, rather than 20,300 persons according to the 2014 population projections (a reduction of 53%). However, in order to arrive at an estimate of OAHN it is necessary to consider how estimates of future population translate into projections of the future number of households to be accommodated, by inter alia estimating future changes over time in the size of households. On 20 September 2018 the ONS published its 2016-based household projections (“ONS 2016”). These projected a growth in the number of households in the Council's district of 6,350 by 2033, compared to the 2014-based...
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