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05th March 2021

Court of Appeal confirms approach where precise boundaries of green belt are undefined and the cost risks of a CAAD Appeal

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The Court of Appeal has confirmed the correct approach in planning decisions where green belt land is only strategically set out in development plan documents. They also clarified the costs liability of compulsory purchase certificate of appropriate alternative development (CAAD) appeals.  

Leech Homes Ltd v Northumberland County Council [2021] EWCA Civ 198 concerned two related decisions of the Upper Tribunal (Lands Chamber) arising from a CAAD appeal by Leech Homes for a hypothetical residential development consisting of about 135 dwellings. The county council had compulsorily acquired Leech Homes’ land for the purpose of constructing the Morpeth northern by-pass. Compensation will then be assessed based on the CAAD.

The county council (as local planning authority) decided that there was no appropriate alternative development for the site because it was green belt land. It was common ground between the parties that if the site was green belt land then it was inappropriate development under the NPPF. Leech Homes appealed to the tribunal under section 18 of the Compulsory Purchase Act 1961.

On the issue of green belt land, Policy S5 in the Northumberland County and National Park Joint Structure Plan (2005) strategically established the green belt around Morpeth. However, it left the precise boundaries of the proposed extension to be fixed by a future local plan. Interestingly, the Secretary of State had determined the site was not part of the green belt in the decision on the development consent order for the by-pass scheme.

The tribunal held that it should be assumed, in the absence of some good reason for concluding that the site was not within the green belt, that it was green belt land. Applying that assessment, it dismissed the CAAD appeal on grounds the site was green belt land. They also ordered Leech Homes to pay the county council’s costs as the successful party.

Assessing Green Belt where no precisely defined plan

Lord Justice Lewison dismissed the appeal concerning the tribunal’s approach to assessing green belt. He confirmed that where green belt land is only strategically set out in development plan documents with no local plan precisely defining the boundaries then a two-stage approach is required. He explained the relevant questions for each stage as:

  1. Is the land capable of being green belt under the strategic policy? To disapply green belt planning policies at this stage would be to remove options for designation as green belt that the local planning authority has currently (ie. in their planning making functions); and

  2. Is there ‘sufficient reason’ for concluding that when the boundaries of the green belt are
    finally determined with precision by a local development plan the particular land in issue would be excluded from the green belt? This second stage involves the exercise of planning judgment in deciding whether there is sufficient reason for excluding the land from the green belt.

On the issue of the relevance of the decision for the development consent order as to the extent of green belt land the Court of Appeal found no error of law by the tribunal. The tribunal had reasoned that the earlier decisions had not applied the correct approach and importantly had failed to identify the relevant strategic policy S5.  The Court of Appeal found that the tribunal was entitled to disregard previous decisions which had applied the wrong legal approach in its planning judgement.

Costs orders on CAAD appeals

The Court of Appeal did allow Leech Homes’ appeal on the adverse costs order of the tribunal concluding that CAAD appeals were a precursor to compensation. Therefore, the power of the tribunal to make a costs order against an unsuccessful party (absent unreasonable behaviour) was not covered by the wider costs rules in proceedings for compensation for compulsory purchase under Rule 10 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. 

Accordingly, the tribunal did not have the power to make the costs order that it did. That said, successful landowners can still claim their costs of a CAAD appeal later as part of the assessment of compensation for the compulsory acquisition.

If you have any questions in relation to this article or require assistance in matters concerning planning and compulsory purchase then the Planning and Environment Team at Hewitsons LLP will be happy to assist.