AC-2025-LON-001100 - [2025] EWHC 2742 (Admin)

The Claimant submitted that the Inspectors erred in law by narrowing the scope of “exceptional circumstances” said to be legally capable of justifying additions to the Green Belt under section 13 of the NPPF. As a result of being persuaded by GMCA, erroneously, to apply a restrictive “legal test” as to whether exceptional circumstances could be shown, the number of sites to be designated as new Green Belt was substantially reduced.

The Claimant submitted that the correct approach was set out by Ouseley J. in Compton PC & Ors v Guildford BC & Ors [2019] EWHC 3242 (Admin):

“68.

There is no definition of the policy concept of “exceptional circumstances”. This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case; Calverton Parish Council v Nottingham City Council [2015] EWHC 1078 at [20], Jay J. It is deliberately broad, and not susceptible to dictionary definition.

69.

The parties agreed that whether a particular factor was capable of being an “exceptional circumstance” in any particular case was a matter of law; but whether in any particular case it was treated as such, was a matter of planning judgment. That does not take one very far, in my judgment, because a judicial decision that a factor relied on by a planning decision-maker as an “exceptional circumstance” was not in law capable of being one is likely to require some caution and judicial restraint. All that is required is that the circumstances relied on, taken together, rationally fit within the scope of “exceptional circumstances” in this context. The breadth of the phrase and the array of circumstances which may come within it place the judicial emphasis very much more on the rationality of the judgment than on providing a definition or criteria or characteristics for that which the policy-maker has left in deliberately broad terms.”

The GMCA, and subsequently the Inspectors, mistakenly relied upon the Court of Appeal judgment in Gallagher Homes Limited v Solihull MBC [2014] EWCA Civ 1610 (“Gallagher CA”) as the basis for a restrictive legal test, derived from obiter dicta in the judgment of Simon Brown LJ in the Court of Appeal in Copas v RB Windsor and Maidenhead [2002] 1 P & CR 16, at [40], applicable to additions to the Green Belt. However, the ratio of Gallagher CA, was merely that the factor identified by the inspector, namely that the site was not suitable for housing development, was not capable, without more, of constituting exceptional circumstances which justified an addition to the Green Belt. Laws LJ did not hold that, as a matter of law, an addition to the Green Belt required a fundamental change of circumstances which falsified the basis upon which a site was previously excluded from the Green Belt. It would have been very surprising for the Court to place such a gloss on the broad policy term of exceptional circumstances.

The correct interpretation of the Copas and Gallagher HC and CA cases was set out in IM Properties Ltd v Lichfield DC [2015] PTSR 1536 (“IM Properties 2015”). Cranston J. endorsed the approach of Patterson J. in the applicant’s earlier judicial review: R (IM Properties Development Ltd) v Lichfield District Council [2014] PTSR 1484 (“IM Properties 2014”), at [90], where she rejected the “falsification principle” based on the obiter dicta remarks of Simon Brown LJ in Copas.

The Claimant accepted that the Inspectors’ approach would have been lawful if, as the Secretary of State submitted (Footnote: ⁶), the factors of a “fundamental change in circumstances” and whether a change is needed to correct a boundary anomaly were merely adopted as relevant considerations and criteria for the assessment of whether or not there were exceptional circumstances within the meaning of the NPPF, and did not preclude consideration of other relevant considerations and factors. However, the Claimant submitted that was not the approach adopted by the Inspectors. Instead, they accepted the GMCA’s erroneous submission that the case law required them to proceed on the basis that a fundamental change and/or an anomalous boundary was the only way of meeting exceptional circumstances. This approach unlawfully constrained the exercise of their planning judgment because consideration of other matters was excluded.

The Secretary of State submitted that this was a dispute on the application of the “exceptional circumstances” Green Belt policy. There could be no doubt the Inspectors understood that the overarching test was one of “exceptional circumstances” (see IR 869), but that test is extremely broad and Inspectors have discretion in how to apply it. See Compton, followed in Keep Bourne End Green.

Whether there are exceptional circumstances was a planning judgment which required judgment as to what were the material considerations. In this light it was lawful for a decision-maker to set up criteria to establish whether the exceptional circumstances test was met (Keep Bourne End Green at [156] – [157]). In this case, the Councils set up and applied the criteria as summarised in the GMCA’s Note, which the Inspectors then considered.

There was no dispute that whether or not there had been a fundamental change in circumstances could be a relevant consideration. Further, on the facts of the particular case, it was permissible to adopt that as the test: see Copas. Whilst that did not give rise to a “falsification doctrine” (see Keep Bourne Green at [146(vi)]), it was a “response to the particular factual circumstances” (IM Properties 2015, at [52]). As such, on the facts of the case, the approach was appropriate. This was confirmed in the High Court in Gallagher Homes Limited v Solihull MBC [2014] EWHC 1283 (Admin) (“Gallagher HC”) and in Gallagher CA.

In IM Properties 2014 and IM Properties 2015, the courts rejected the claimant’s submission that the inspector was required to adopt a “falsification doctrine”, based on Copas. But they did not find that Copas was wrongly decided.

At IR 870 - 872, the Inspectors agreed with the GMCA’s revised approach in considering whether there were exceptional circumstances based on whether (i) there had been a fundamental change in circumstances; and/or (ii) correction of an anomaly, where the existing boundary did not follow a readily recognisable physical feature. These were the two main considerations which were given the most weight in the assessment. They were very general and used in a very broad sense. As the GMCA said, they were a “proxy” for exceptional circumstances. The Claimant used the criteria in paragraph 139 of the NPPF as a guide or proxy. One of those criteria is the need to show “major changes in circumstances have made the adoption of this exceptional measure necessary” (139(b)). This is one of the criteria that the Inspectors adopted here.

The Secretary of State submitted (at paragraph 47 of his skeleton argument):

“The fact that it was open to the Inspectors to adopt the approach they did is clear from Copas in which Simon Brown LJ took the view that, in the case before him, there could not be exceptional circumstances “unless some fundamental assumption which cause the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event”. There is no dispute that approach was not mandated, but there is no suggestion it is unlawful.”

The Secretary of State concluded that it was rational and lawful for the Inspectors to adopt the same approach as the Court of Appeal.

The GMCA submitted that the NPPF policy test of “exceptional circumstances” needed to be read in the context of both Copas and Gallagher HC and CA, both of which considered the principles to be applied when making additions to the Green Belt, as opposed to removals. Copas was binding authority on the issue; it was not merely obiter dicta (see Gallagher HC at [131]). The GMCA Note accurately summarised Copas and Gallagher HC and CA.

Most of the case law relates to removing land from the Green Belt as opposed to adding to it. One obvious difference between the two is that “exceptional circumstances” to remove land from the Green Belt can be found where there is a need for particular types of development (e.g. housing and / or employment development) and the land in question is considered suitable for development; whereas the opposite situation of a site being unsuitable for development “cannot be said without more to constitute an exceptional circumstance” for adding land to the Green Belt: see Gallagher CA, per Laws LJat [36].

It was implicit in the Claimant’s case that there were no guiding principles to be applied to the test of “exceptional circumstances” and that it was simply a matter of making a planning judgment. That submission was rejected by the High Court in Gallagher HC (see [127] and [135]). The appeal against the Judge’s decision on this ground was rejected by the Court of Appeal.

The High Court in Gallagher HC applied the Copas text at [135], finding that:

“[the Inspector’s decision] falls very far short of the stringent test for exceptional circumstances that any revision of the Green Belt boundary must satisfy. There is nothing in this case that suggests that any of the assumptions upon which the Green Belt boundary was set has proved unfounded, nor has anything occurred since the Green Belt boundary was set that might justify the redefinition of the boundary.” (Emphasis added)

Whilst the Claimant criticised the Councils’ description in the Note of “an exacting legal test” it was hard to see anything in this criticism given the way it was described by Hickinbottom J. as a “stringent test”.

The proposition rejected in IM Properties 2014 and IM Properties 2015 was that there was a very specific doctrine of falsification and that this was the only way in which a Green Belt revision could be justified. The GMCA did not rely upon a doctrine of falsification and did not incorporate the term “falsification” in its revised approach, as set out in its Note dated 9 March 2023, submitted to the Inspectors after the first Green Belt hearing.

The GMCA did not assert that a fundamental change was the sole means of demonstrating exceptional circumstances. It also referred to the consideration of boundary anomalies which was derived from the requirement in paragraph 143 of the NPPF that Green Belt boundaries should be “clearly” defined in a plan, “using physical features that are readily recognisable and likely to be permanent”. The schedule to the Note identified 12 instances of boundary anomalies justifying revision, and 8 instances of fundamental change (3 of the proposed additions involved both boundary anomaly and fundamental change).

Moreover, the Inspectors did not consider the fundamental change principle to be the sole means of demonstrating exceptional circumstances. Although the Inspectors stated at IR 872 that they agreed with the Councils’ “revised approach based on case law”, they applied their own judgment to each proposed addition in the draft Plan submitted to them.

Accordingly the Inspectors, at IR 872, approached their task of reporting whether the addition of various parcels of land to the Green Belt was justified by exceptional circumstances by considering three distinct ways in which this might be so, namely:

If one compares the analysis in the IR with the 17 Green Belt proposed additions in the schedule to the GMCA’s Note, it is apparent that the Inspectors disagreed with the Councils in regard to GBA02 (IR 874 – 878); and GBA34 (IR 910 – 913) and recommended that the land in question in both cases should be added to the Green Belt despite neither appearing in the Councils’ list. There were also two instances where the IR explicitly discusses sites which are not on the Councils’ list and agrees with the Councils that they should not be added to the Green Belt (namely GBA27 (IR 894 – 898), and GBA42 (IR 923 – 926)).

It is right that the IR largely but not exclusively analyses the areas of land proposed to be added to the Green Belt in the draft Plan by applying the fundamental change and/or the anomalous boundary approaches. Most of the parcels of land they recommended should be added to the Green Belt are cases where they concluded there were anomalous boundaries.

The third approach (“general circumstances”) features in the Inspectors’ reasoning for eight of the parcels they explicitly considered (GBA: 26, 27, 28, 34, 37, 40, 41, 43) in their report (see IR 892, 898, 900, 911, 912, 918, 928). Thus, in relation to GBA34 the Inspectors disagreed with the Councils’ revised assessment in relation to this area, finding that there were exceptional circumstances to include the land within the Green Belt as “the exclusion of this area now appears to be somewhat anomalous” due not solely to an absence of physical features to represent the boundary but based upon changes to the land uses around the site which “significantly altered the character of the area” (see IR 911 – 913).

Thus, it is clear that as a matter of fact, the Inspectors did not adopt the “fundamental change” test as the sole means of justifying exceptional circumstances as alleged by the Claimant.

The Interested Parties supported the submissions made by the Secretary of State, the GMCA and the Councils.

Mr Fraser KC, Counsel for IP1 and IP2, identified further examples of the Inspectors relying upon factors which fell into the third category of general circumstances, in addition to those identified by Mr Katkowski KC at paragraph 73 above. They were GBA19 (IR 887); GBA29 (IR 903); GBA34 (IR 911).

The “exceptional circumstances” test has been considered in a number of authorities.

In Carpets of Worth Ltd v Wyre Forest District Council (1991) 62 P & CR 334, which concerned a successful challenge to an addition to the Green Belt, the Court of Appeal considered the guidance in Circular 14/84 that the extent of the Green Belt “should be altered only in exceptional circumstances”. Purchas LJ rejected a submission that this test did not apply to additions to the Green Belt and said, at 346:

“As it directly prejudices landowners in the otherwise proper development of their land an extension to the green belt should not be brought into effect unless it can be justified directly by those purposes for which the green belt is designed. There must there be an inhibition in extending a green belt so as to avoid sterilising unnecessarily neighbouring land …. just as much as reductions in the boundaries of the green belt, which would prejudice the purposes of that green belt must also only be made in exceptional circumstances. On this basis I think that the general concept of the advice in the circulars is that once a green belt has been established it must require exceptional circumstances rather than general planning concepts to justify an alteration. Whichever way the boundary is altered there must be serious prejudice one way or the other to the parties involved.”

Purchas LJ (at 343, 346) and Taylor LJ (at 347) held that the use of the word “altered” indicated that the same stringent test applied equally to reductions or extensions of the Green Belt.

In Gallagher HC, Hickinbottom J. endorsed the view of the Court in Carpets of Worth that the same approach applied to additions and removals, at [125(iii)], and added at [132]:

“…. A prime character of Green Belts is their ability to ensure through changes of such policies. For the reasons set out in Carpets of Worth (at page 346 per Purchas LJ) it is important that a proposal to extend a Green Belt is subject to the same, stringent regime as a proposal to diminish it, because whichever way the boundary is altered “there must be serious prejudice one way of the other to the parties involved.”

In my view, based upon the passages in the judgments set out above, the same legal approach should be applied to additions to, or removal from, the Green Belt. Of course, I recognise that there are provisions in the NPPF Green Belt policies which are plainly intended to apply to removals, not additions, and the factors to be addressed are likely to differ as between removals and additions.

In Copas, which concerned a successful challenge to an addition to the Green Belt, the Court of Appeal found that the Inspector failed to apply correctly the “exceptional circumstances” test in the Planning Policy Guidance 2 (“PPG2”), paragraph 2.7, which read “existing boundaries should not be changed unless alterations to the structure plan have been approved, or other exceptional circumstances exist, which necessitate such revision”. The inspector found as follows:

“2.48

In summary, I believe that there are exceptional circumstances which necessitate a revision of the Green Belt boundary in this instance. I have not reached that conclusion lightly because I recognise the need for such boundaries to be permanent wherever possible. However, the most recent appeal decision justifies a very different perception of the site than that which prevailed when the present boundary was set. It also means, in my view, that the continued omission of the site from the Green Belt would be an incongruous anomaly.”

Mr Lockhart-Mummery KC, sitting as a Deputy High Court Judge, held that the inspector was entitled to reach his conclusion on the effect of the 1991 decision in which the Secretary of State was “manifestly valuing the openness of the site in two specific contexts: that of listed buildings and important or historic views” which was “clearly relevant … to the later judgment now being made as to the importance of openness in another context”. He held that the Secretary of State’s conclusions were capable of amounting to an exceptional circumstance for the purposes of paragraph 2.7 of PPG2.

Simon Brown LJ held that paragraph 2.7 expressed “a single composite test: circumstances are not for this purpose exceptional unless they do necessitate a revision of the boundary” (at [23]). He went on to say, at [39] and [40]:

“39.

It must, of course, be recognised that PPGs have no formal statutory force and are not to be construed and applied as if they had. The only statutory obligation ….. is to have regard to them. All this was pointed out by Purchas LJ in the Carpets of Worth (at p.88). That said, the Guidance must be given some reasonable meaning and be properly understood by those charged with forming the relevant planning judgment.

40.

I would hold that the requisite necessity in a PPG 2 paragraph 2.7 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". The Secretary of State's 1991 objection to development was neither sufficiently long-term nor sufficiently clearly applicable to all possible development on all parts of the site to be capable of constituting such an event, still less when it seemed of itself to demonstrate the sufficiency of existing planning controls to safeguard the various amenity interests identified.”

In Gallagher HC, which concerned a successful challenge to the addition of land to the Green Belt, Hickinbottom J. reviewed the authorities on the application of the “exceptional circumstances” test, as follows:

“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.”

The Claimant in this case accepted the principle of necessity for a revision as set out in [125(ii)(b)] by Hickinbottom J. and accepted by Mr Dove (as he then was).

Hickinbottom J. summarised the approach in Copas as follows:

“130.

…..

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.)

131.

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.”

The Judge proceeded to apply the test to the facts of the case, at [132] – [135]. In particular, he said:

“135.

…..the Inspector, unfortunately, did not adopt the correct approach to the proposed revision of the Green Belt boundary to include the Sites, which had previously been white, unallocated land. He performed an exercise of simply balancing the various current policy factors, and using his planning judgment, concluding that it was unlikely that either of these two sites would, under current policies, [be] likely to be found suitable for development. That, in his judgment, may now be so; but that falls very far short of the stringent test for exceptional circumstances that any revision of the Green Belt boundary must satisfy. There is nothing in this case that suggests that any of the assumptions upon which the Green Belt boundary was set has proved unfounded, nor has anything occurred since the Green Belt boundary was set that might justify the redefinition of the boundary.”

In Gallagher CA, the Court of Appeal dismissed an appeal against the decision of Hickinbottom J. in the High Court, on 17 December 2014. Laws LJ rejected the submission that Simon Brown LJ’s observations in Copas no longer applied because paragraph 83 of the NPPF omitted the requirement of necessity which was expressly stated in PPG2 paragraph 2.7. He approved Hickinbottom J.’s conclusion that Simon Brown LJ’s observation at [23] in Copas that circumstances were not exceptional unless they necessitated a revision of the boundary continued to apply, despite the change in policy wording. Laws LJ held that the fact that a particular site was not suitable for housing development could not be said without more to constitute an exceptional circumstance. It was significant that in essence the merits or demerits of the possible use of these sites for housing had not apparently changed since 2005 when the same inspector took a view diametrically opposed to his conclusion in the present case.

In IM Properties 2014, which concerned an unsuccessful challenge to the release of Green Belt sites, Patterson J. considered the significance of Simon Brown LJ’s observations in Copas. Her judgment was handed down on 18 July 2014, before the Court of Appeal’s judgment in Gallagher CA. She said as follows:

“87 The claimant contends that the local authority has persistently misunderstood the approach to the revisions of the Green Belt. He relies on Copas v Windsor and Maidenhead Royal Borough Council [2002] 1 P & CR 199 which dealt with previous guidance on Green Belt in PPG2. There, Simon Brown LJ made it clear that the terms of the guidance were clear so that unless there were exceptional circumstances which necessitated a revision of the Green Belt boundary a single composite test would not be satisfied. Further, from para 40 of the judgment the claimant derives a proposition which he describes as the falsification doctrine. Para 40 reads:

……

88 From that it is said that a revision proposed to increase a Green Belt cannot arise unless the fundamental basis on which the land was originally excluded from the Green Belt was subsequently falsified. The converse must also apply when the Green Belt is to be rolled back.

89 The local authority and interested parties assert that the falsification doctrine does not exist. It is a misreading of the Copas case on the part of the claimant. In any event it is not the relevant test. That is whether a necessity has been established as a result of the exceptional circumstances to bring about a boundary alteration.

90 Gallagher Homes Ltd v Solihull Metropolitan Borough Council [2014] EWHC 1283 (Admin) deals with the test for redefining a Green Belt boundary since the publication of the NPPF. Paras 124—125 of the Gallagher case read:

…..

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.

…..

Discussion and conclusions

95 In my judgment 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 Gallagher case 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 the Gallagher case there is no reference to a falsification doctrine or that any release of Green Belt land has to be seen as a last resort.”

Thus, Patterson J. accepted that the test was whether the exceptional circumstances necessitated revision (at [91], accepting the submission at [89]). But she rejected the submission that Simon Brown LJ’s observations in Copas should be elevated into a falsification doctrine (at [95]). Sullivan LJ accepted her analysis when refusing permission to appeal against her decision.

In IM Properties 2015, which concerned the same sites, Cranston J. made the following observations:

“51 In Gallagher Homes Ltd v Solihull Metropolitan Borough Council [2014] JPL 1117, para 125, Hickinbottom J helpfully gathered together a number of the relevant principles regarding the Green Belt. Firstly, the test for redefining a Green Belt boundary has not been changed by the NPPF. Secondly, the mere process of preparing a new local plan is not in itself to be regarded as an exceptional circumstance justifying an alternative to a Green Belt boundary. Thirdly, the test for redefinition of a Green Belt under the NPPF remains what it was previously: exceptional circumstances are required which necessitate a revision of the boundary. That is a simple composite test because, for this purpose, circumstances are not exceptional unless they necessitate a revision of a boundary. Fourthly, 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 it fails to adopt a lawful approach to exceptional circumstances. Fifthly, once a Green Belt has been established and approved, it requires more than general planning concepts to justify an alteration. Hickinbottom J’s fifth point was endorsed on appeal: the Gallagher Homes case [2015] JPL 713, paras 33 and 36.

52 When Patterson J considered the applicant’s judicial review, R (IM Properties Development Ltd) v Lichfield District Council [2014] PTSR 1484, para 90, she endorsed Hickinbottom J’s enunciation of the relevant principles in the Gallagher Homes case. In Calverton Parish Council v Nottingham City Council (No 2) [2015] EWHC 1078 (Admin) at [44], Jay J considered Patterson J’s judgment where, at para 100, she considered the issue of planning judgment and slightly recast the issue as follows:

“[Whether], in the exercise of planning judgment and in the overall context of the positive statutory duty to achieve sustainable development, exceptional circumstances existed to justify the release of Green Belt.”

It will be recalled that Patterson J rejected at [2014] PTSR 1484, para 90 what the applicant had advanced as an additional principle, that to justify an alternative of the Green Belt boundary the council had to identify a basis for concluding that the assumptions on which it had been drawn had been falsified. The applicant had drawn this falsification principle from obiter remarks of Simon Brown LJ in Copas v Windsor and Maidenhead Royal Borough Council [2002] 1 P & CR 199, para 40. In refusing permission to appeal from Patterson J’s judgment, Sullivan LJ said that the applicant “erroneously elevates judicial dicta which were a response to the particular factual circumstances of the Copas case into a legal principle of universal application.”

53 So any submission that Mr Crean would make that the planning inspector was in error for not asking himself whether something had occurred to undo an assumption on which the Green Belt boundary had originally been drawn would fall at the first hurdle…..”

On my reading of Copas,at [39] and [40], Simon Brown LJ was giving general guidance to decision-makers on the meaning and application of PPG2 paragraph 2.7. Whilst of course such guidance from the Court of Appeal carries great weight, I consider that it was technically obiter dicta. I agree with the Claimant that the ratio of the decision in Copas was based on the particular facts of the case, as summarised at the end of [40]. In my view, Simon Brown LJ’s guidance in Copas in the first sentence of [40] was not essential to the decision of the court, and so was not a binding precedent. I consider that the outcome would have been the same, simply applying the wording of PPG2 paragraph 2.7, even without Simon Brown LJ’s additional guidance i.e. there were no exceptional circumstances which necessitated a revision of the Green Belt boundary.

My conclusion that the passage relied upon was obiter dicta, and did not establish a binding and universal legal principle to be applied in all Green Belt addition cases, is supported by the judgments/rulings in IP Properties 2014 (Patterson J. and Sullivan LJ) and IP Properties 2015 (Cranston J.). The claimant’s application for permission to appeal against the judgment of Cranston J. on this ground among others was dismissed by Sales LJ at an oral hearing on 25 February 2016 ([2016] EWCA Civ 257).

Regrettably, I am in disagreement with Hickinbottom J. in Gallagher HC at [131], where he concluded that the passage in Copas at [40] was a binding principle of law. Although his decision was upheld on appeal, I note that Laws LJ in Gallagher CA did not expressly endorse [131] of Hickinbottom J.’s judgment, nor address the question of whether Simon Brown LJ’s guidance on PPG2 was part of the ratio of Copas or merely obiter dicta. Laws LJ’s comments on Copas focussed on the necessity test at [23], not the falsification of an earlier fundamental assumption, as set out in [40], although I infer that he agreed with the guidance that Simon Brown LJ gave at [40].

In my judgment, the ratio of the decision in Gallagher CA was set out by Laws LJ at [36] where he held that the “fact that a particular site within a Council’s area happens not to be suitable for housing development could not be said without more to constitute an exceptional circumstance, justifying an alteration of the Green Belt by the allocation to it of the site in question”. In my view, Simon Brown LJ’s guidance in Copas at [40] was not essential to the decision of the Court and so was not a binding precedent. I consider that the outcome would have been the same even without Simon Brown LJ’s guidance, simply applying the words of PPG2 paragraph 2.7 i.e. there were no exceptional circumstances which necessitated a revision of the Green Belt boundary.

In Compton PC & Ors v Guildford BC & Ors [2019] EWHC 3242 (Admin), which concerned an unsuccessful challenge to a release of land from the Green Belt, Sir Duncan Ouseley, sitting as a High Court Judge, made the following observations:

“68.

There is no definition of the policy concept of “exceptional circumstances”. This itself is a deliberate policy decision, demonstrating that there is a planning judgment to be made in all the circumstances of any particular case; Calverton Parish Council v Nottingham City Council [2015] EWHC 1078 at [20], Jay J. It is deliberately broad, and not susceptible to dictionary definition.

69.

The parties agreed that whether a particular factor was capable of being an “exceptional circumstance” in any particular case was a matter of law; but whether in any particular case it was treated as such, was a matter of planning judgment. That does not take one very far, in my judgment, because a judicial decision that a factor relied on by a planning decision-maker as an “exceptional circumstance” was not in law capable of being one is likely to require some caution and judicial restraint. All that is required is that the circumstances relied on, taken together, rationally fit within the scope of “exceptional circumstances” in this context. The breadth of the phrase and the array of circumstances which may come within it place the judicial emphasis very much more on the rationality of the judgment than on providing a definition or criteria or characteristics for that which the policy-maker has left in deliberately broad terms.

70.

“Exceptional circumstances” is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires “very special circumstances.” That difference is clear enough from the language itself and the different contexts in which they appear, but if authority were necessary, it can be found in R(Luton BC) v Central Bedfordshire Council [2015] EWCA Civ 537 at [56], Sales LJ. As Patterson J pointed out in IM Properties Development Ltd v Lichfield DC [2014] EWHC 2240 at [90-91 and 95-96], there is no requirement that Green Belt land be released as a last resort, nor was it necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events.

71.

There is however a danger of the simple question of whether there are “exceptional circumstances” being judicially over-analysed. This phrase does not require at least more than one individual “exceptional circumstance”. The “exceptional circumstances” can be found in the accumulation or combination of circumstances, of varying natures, which entitle the decision-maker, in the rational exercise of a planning judgment, to say that the circumstances are sufficiently exceptional to warrant altering the Green Belt boundary.”

In Keep Bourne End Green, which concerned an unsuccessful challenge to the release of land from the Green Belt, Holgate J. summarised the legal principles to be applied at [146]:

“146.

I begin by summarising principles set out by Sir Duncan Ouseley in Compton Parish Council v Guildford Borough Council [2020] JPL 661 at [68]-[72]:-

(i)

There is no definition of the policy concept of “exceptional circumstances”. The expression is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case;

(ii)

Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment;

(iii)

But the suggestion that a factor is legally incapable of amounting to an exceptional circumstance will generally require caution and judicial restraint. The breadth of the phrase and the array of circumstances which may qualify as “exceptional” indicate that judicial emphasis is very much more on the rationality of the judgment made by the decision-maker than on seeking to define what can or cannot amount to “exceptional circumstances”;

(iv)

“Exceptional circumstances” is a less demanding test than the “very special circumstances” test (as explained in paragraphs 87-88 of NPPF 2012 and now paragraphs 143-144 of NPPF 2019) used in development control in the green belt;

(v)

There is no requirement that green belt land may only be released as a last resort,

(vi)

There is no requirement to show that the assumptions upon which a green belt boundary was originally drawn up have been falsified by subsequent events;

(vii)

Exceptional circumstances may comprise one factor or a combination of factors of varying natures;

(viii)

General planning needs, for example general housing, are not excluded from amounting to exceptional circumstances. The need does not have to relate to a special form of housing or to a particular level of intensity.”

Holgate J. added, at [153]:

“153.

It should also be emphasised that what may be judged by a decision-maker to amount to exceptional circumstances” is highly fact sensitive in each individual case. It will be sensitive to a range of case-specific considerations and the varying weight given to each, including the circumstances of a particular area, the policy context, the evidence base and the arguments advanced in the consultation and examination stages. That is why Sir Duncan Ouseley was, with respect, entirely correct to place much greater emphasis upon the court’s role of determining whether a decision-maker’s judgment was irrational, and not on attempting to define “exceptionality”. Of course, claimants face a high hurdle when seeking to advance irrationality in relation to the making of a planning judgment (see [95] above).”

The Secretary of State particularly emphasised Holgate J.’s confirmation, at [156] – [157], that it was lawful for a decision maker to set up and apply criteria to establish whether the exceptional circumstances test was met:

“156.

Before looking at the Inspector’s report, it is helpful to have in mind the approach which the Council took to the review of green belt boundaries in Part Two of its assessment. Paragraph 2.4 states:-

“The Council’s position is that, exceptional circumstances will not exist unless all four of the following requirements are satisfied:

i  The location is capable of contributing to sustainable development. This means it must be a logical extension to an existing settlement in Tiers 1-4 as identified in the Settlement Hierarchy. (Settlements in these tiers include all identified transport hubs).

ii  The site is capable of removal from the Green Belt. In this context, a site is considered ‘capable’ of removal from the Green Belt when its removal from the Green Belt could be acceptable having regard to a) the purposes of including land in the Green Belt, b) the general extent of the Green Belt, and c) the requirement for permanent and robust boundaries. On its own, ‘capable’ does not mean that there are ‘exceptional circumstances’.

iii  If proposed for housing, the site must also be a deliverable or developable site in the terms set out in para 47 of the NPPF (footnotes 11 and 12) – this means that it is suitable from a detailed sustainability perspective, and has a reasonable prospect of delivery within the plan period, thereby contributing to meeting the OAN. If proposed for employment, the site must similarly have realistic prospects of delivering the proposed allocation within the plan period, having regard to local market indicators and any other relevant factors.

iv  The OAN is not being met from other sources of supply and the scale of unmet need balanced against the contribution a site makes to the quality and function of the Green Belt weighs in favour of release.”

157.

Mr. Burton accepted that there was nothing unlawful about the criteria set down in that paragraph. Criteria (i) and (iii) related in part to paragraph 84 of the NPPF 2012 and the deliverability requirement is an obviously sensible precaution before considering changes to a green belt boundary. Criterion (iv) rightly required the scale of any unmet need to be weighed. Criterion (ii) required an assessment to be made of green belt function. Here I note Mr Burton’s acceptance that where an area of land had ceased to serve any green belt function that could amount to an exceptional circumstance. In my judgment, the criteria used by the Council are an example of the sort of “open-textured” approach referred to by Jay J which cannot be impugned.”

These judgments provide helpful guidance on the approach to adopt to Green Belt boundary revisions. Although both were concerned with releases from the Green Belt, I consider that similar principles apply by analogy to additions to the Green Belt. Ouseley J. at [70] endorsed the view of Patterson J. in IM Properties 2014 that it was not necessary to show that assumptions upon which the Green Belt boundary had been drawn, had been falsified by subsequent events. Holgate J. confirmed this view at [146(vi)]. Thus, neither Judge endorsed the guidance of Simon Brown LJ in Copas at [40] in this regard.

The draft Plan was submitted for examination on 14 February 2022. It included the proposed designation of 49 sites to be added to the Green Belt. The examination ran between 1 November 2022 and 5 July 2023, with hearings on the principle of Green Belt additions on 9 March 2023 and 28 March 2023 (Footnote: ⁷).

In response to PQ33 of the Inspectors’ Preliminary Questions, in May 2022, the GMCA answered as follows (Footnote: ⁸):

“What are the exceptional circumstances for altering the established boundaries to justify adding 675 hectares of land to the Green Belt in 49 locations?

The exceptional circumstances are that the sites proposed to be added to the Green Belt meet at least one of the five purposes of Green Belt set out in NPPF 138 and meet all five criteria to establish new Green Belt in NPPF 139. The Green Belt Topic Paper and Case for Exceptional Circumstances to amend the Green Belt Boundary (07.01.25) provides further details. Paragraph 6.30 and 6.31 on page 35 of the topic paper outline that the ‘Contribution Assessment of Proposed 2020 GMSF Green Belt Additions’ found that all 49 sites meet at least one purpose of Green Belt and Appendix 3 of the topic paper justifies how each site meets all five criteria to establish new Green Belt.”

In a document entitled “IN11: Matters, Issues and Questions relating to Green Belt additions”, dated 21 July 2022, the Inspectors set out detailed site-specific questions probing the exceptional circumstances said to justify making the Green Belt additions. These included seeking more information as to “what are the major changes in circumstances since the existing Green Belt boundary was defined in this location that make the adoption of this exceptional measure necessary”, applying paragraph 139b of the NPPF. Documents were submitted by the GMCA providing detailed information answering these questions (see, for example, the document relating to Matter 25, dealing with the addition of sites in Bolton (Footnote: ⁹)).

However, at the hearing on 9 March 2023, the GMCA changed its position on the approach to exceptional circumstances for the Green Belt additions. This was summarised in its Note (Footnote: ¹⁰) and explained by GMCA’s Counsel in both the hearing sessions on 9 March 2023 and 28 March 2023. (Footnote: ¹¹) The proposed new approach was that exceptional circumstances could only be shown if it could be demonstrated that there was an “existing boundary anomaly” (based on paragraph 143f of the NPPF) or there had been “a fundamental change in circumstances since the time when the extent of the Green Belt was established previously and the land in question was not included in the Green Belt”. This was described as “an exacting legal test”. It was supported in written representations by IP3 (Footnote: ¹²).

Applying its revised test, GMCA explained that it would only support 17 additions to the Green Belt, out of the originally proposed 49 sites. It suggested that it was open to others to make submissions in favour of addition of the other sites that the GMCA was no longer supporting. Some objectors were able to do so. However, objectors were placed at a disadvantage as there was little time for them to take legal advice or to dispute the newly proposed approach in time for the two hearing sessions. In my view, the objectors ought not to be criticised by the Defendants and IPs for failing to challenge the GMCA’s new approach at the time. It is unfortunate that GMCA only identified the case law that it wished to rely upon at such a late stage, despite having access to legal advice. The fact that there was subsequently a consultation on the proposed MMs including the deletion of proposed Green Belt deletions (see paragraph 24 above) mitigates the prejudice to some extent, but not entirely, since by that stage the Inspectors had already formed a view.

On 28 March 2023, the Inspectors at an early part of the session sought further clarity and stated that their starting point was the five criteria for establishing new Green Belt in NPPF paragraph 139. This included the “major change of circumstances” test which GMCA had previously relied on in their evidence base and in written answers to the Inspectors’ questions. GMCA’s Counsel stated that many of the 49 sites met the “major change” test but he then drew a clear distinction between that “major change” policy test and the new and different legal test that he claimed had been formulated by the Courts:

“the major changes test, albeit set out in the framework, and albeit set out for new Green Belts, is not the test that’s been formulated by the courts for adding land to the Green Belt. And that’s, it’s the legal point which is the subject of our paper, which I very largely drafted which is GMCA79, a note re the Green Belt additions.” (Footnote: ¹³)

GMCA’s Counsel indicated that it was the difference between policy and what was said to be the “legal test” developed by the Courts which led GMCA to drop their case for all but 17 of the 49 sites:

“So one has an exceptional circumstances test and one wonders what that means, and were it not for the intervention of the courts, then I mean it may have, very would have been the case that we would have stuck to our guns and said 49 meet the exceptional circumstances test you know free of any case law telling you what that test means for Green Belt additions. But that’s not the position we’re in.”

He then stated that the Courts had held that the exceptional circumstances needed to add to the Green Belt:

“cannot be adjudged to arise unless some fundamental assumption which causes the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event.

I have distilled this into the principle of fundamental change…” (Footnote: ¹⁴)

As the Claimant correctly submitted, the legal route by which the Inspectors were required to consider whether to add land to the Green Belt was via the assessment of soundness, as interpreted through the NPPF, namely whether it is “consistent with national policy”. The relevant part of national policy was contained in section 13 of the NPPF, at paragraphs 140 to 141. Any alterations to the Green Belt (removals or additions) are required to be justified by “exceptional circumstances” but there is no policy in the NPPF or elsewhere as to what those exceptional circumstances are required to comprise.

As Ouseley J. held in Compton, the expression “exceptional circumstances” is deliberately broad. The matter is left to the judgment of the decision-maker in all the circumstances of the case.

Paragraph 139 of the NPPF sets out criteria for the establishment of new Green Belts in exceptional circumstances, which were legitimately used by the GMCA as a proxy for the identification of exceptional circumstances in the version of the Plan initially submitted for examination, and this assessment was available to the Inspectors.

The Inspectors correctly directed themselves, in Issue 52, that the issue was whether exceptional circumstances have been fully evidenced and justified for adding a total of 675 hectares on 49 sites to the Green Belt. It is plain from the numerous references to exceptional circumstances that they had the policy test well in mind. It is safe to assume that the Inspectors had expertise in determining Green Belt policy issues arising under the NPPF.

The Inspectors went on to find as follows:

“869.

National policy advises that, once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified through the preparation or updating of plans. The sites were added as they were considered to serve at least one Green Belt purpose set out in NPPF 138 and to meet all five criteria to establish new Green Belt in NPPF 139.

870.

However, during the examination GMCA outlined a revised approach to considering whether each of the Green Belt additions made in the Plan is justified based on a Court of Appeal judgment. This approach involves considering whether there are exceptional circumstances for each Green Belt addition, based on whether there has been a fundamental change in circumstances since the extent of the Green Belt was established previously and/or whether a change is needed to correct an anomaly where the existing Green Belt boundary does not follow a readily recognisable physical feature.

871.

GMCA applied the revised approach to each of the 49 Green Belt additions in the Plan and the findings are set out in a table in GMCA79. In summary, GMCA concluded that 17 of the additions meet the fundamental change test and/or would resolve an anomalous boundary, whereas the remaining 32 proposed additions did not meet either test.

872.

We agree with the GMCA’s revised approach based on case law, and therefore most of the additions are not justified or consistent with national policy. However, we set out below the specific sites where we consider the addition to be justified based on the GMCA analysis, where we disagree with the GMCA assessment, or because there are circumstances relating to a site that need addressing.

873.

We, therefore, recommend that the Plan be modified to delete the following Green Belt additions as exceptional circumstances have not been fully evidenced and justified: GBA01, GBA03, GBA04, GBA06 to GBA11, GBA13, GBA15 to GBA18, GBA20 to GBA24, GBA27, GBA30, GBA33, GBA36, GBA38, GBA42, and GBA45 to GBA49 [MMApxB.1 to MMApxB.4]……”

The Inspectors accepted the 17 additions proposed by the GMCA and added a further two additions, making 19 in total.

The Inspectors, at IR 872, approached their task of deciding whether the addition of various parcels of land to the Green Belt was justified by exceptional circumstances by considering three distinct ways in which this might be so, namely:

It was common ground before me that whether or not there were exceptional circumstances was a planning judgment for the decision-maker to make. In order to exercise its planning judgment, the decision-maker had to identify the material considerations. I accept the Secretary of State’s submission that, in undertaking this exercise, it was lawful for the decision-maker to set up criteria to establish whether the exceptional circumstances test was met: see Keep Bourne End Green, per Holgate J., at [156] – [157].

The first criterion relied upon by the GMCA, and accepted by the Inspectors, was a fundamental change in circumstances since the extent of the Green Belt boundary was previously established. There was no dispute before me that this was a relevant consideration. In my judgment, it was at least permissible, though not mandatory, for the decision-makers to rely upon it as a criterion, in the light of Copas and Gallagher HC and CA. Importantly, neither the GMCA nor the Inspectors relied upon the restrictive falsification doctrine in Copas, which has been criticised by the courts.

The second criterion relied upon by the GMCA, and accepted by the Inspectors, was whether the existing Green Belt boundary was anomalous. It was derived from paragraph 143f of the NPPF which provides that Green Belt boundaries should be defined “….clearly, using physical features that are readily recognisable and likely to be permanent”. There was no dispute before me that this was a relevant consideration and an appropriate criterion.

In my judgment, the Claimant’s concern that the Inspectors were unlawfully constrained in the exercise of their planning judgment by the application of these criteria, because they were presented to them by the GMCA and IP3 as a binding legal test, is not justified. It is apparent from IR 872 that, in addition to the application of the two criteria relied on by the GMCA, the Inspectors adopted a third category of their own, which they broadly labelled sites where “there were circumstances …… that need addressing”. In their analysis of selected sites, at IR 874 to 932, the Inspectors clearly relied upon considerations which went beyond the first and second criteria (often by reference to Green Belt policy considerations): see sites GBA: 19, 26, 27, 28, 29, 34, 37, 40, 41, 43. Furthermore, the Inspectors disagreed with the GMCA’s proposed deletion of sites GBA02 and GBA34 and concluded that they should be added to the Green Belt.

Although there was no freestanding reasons challenge in this claim, the Claimant submitted that the absence of detailed reasons for some of the sites meant that it was not possible to judge whether their planning judgment had been unlawfully constrained.

I refer to the principles in CPRE Surrey v Waverley BC [2019] EWCA Civ 1826 and Cherwell Development Watch Alliance v Cherwell DC & Anor [2021] EWHC 2190 (Admin), set out at paragraphs 43 and 44 above. The Inspectors gave detailed reasons for their decisions in 21 sites, where they judged that there was a need to do so, because they were proposing additions to the Green Belt, or disagreeing with the GMCA’s proposals, or there were circumstances that needed to be addressed. In regard to the rest, the Inspectors stated:

“872 We agree with the GMCA’s revised approach based on case law, and therefore most of the additions are not justified or consistent with national policy.”

The Inspectors had detailed information available to them in respect of all 49 sites (see the evidence referred to at paragraphs 103 and 104 above). I am satisfied that the Inspectors took the same approach to all 49 sites i.e. considered the GMCA criteria and any other factors that they considered relevant, having regard to Green Belt policy considerations. They were entitled to conclude that detailed reasons were not required, because the position in regard to the other sites were straightforward and did not involve any change to the existing Green Belt boundary.

For these reasons I conclude that the Inspectors did not err in law by adopting an unduly restrictive legal test in determining whether exceptional circumstances for designating additional Green Belt sites had been established, as alleged by the Claimant.

Accordingly, the claim for statutory review on Ground 5 is dismissed.