CA-2024-002732 - [2025] EWCA Civ 958

On 18 January 2024, the Secretary of State wrote to the parties asking for views on certain changes in the December 2023 version of the NPPF and the 2022 Housing Delivery Test figures. Neither matter related to the green belt.

Headlands answered by way of a statement made by Mr B. Parker, Planning Consultant, dated January 2024. The statement dealt with the matters raised by the Secretary of State but also included the following reference to the Arup Review:

“38.

…. since the Inquiry, the latest [emerging local plan] has undergone a Regulation 18 Consultation. In this regard, however, the unresolved objections to it [see Paragraph 48(b)] are extensive and significant. For instance:

…

• Despite assuring the Inquiry of the veracity of the SKM Green Belt Review, the Council is now informed by a second Green Belt Review which identifies different sites for consideration (the Council will have to explain why SKM and Arup have arrived at different conclusions and which should take priority);"

On or before 12 February 2024, Mr Parker made further representations on behalf of the Third Defendant in which he made the following observations about the Arup Review:

“12.

Secondly, the site south of Chiswell Green Lane is no longer “the top-performing candidate GB release site”. In June 2023, the Council published a new Green Belt Review by Arup. In addition to noting the presence of the popular Chiswell Green Riding School on the site (the loss of which, without being replaced locally, would be contrary to Paragraph 103 of the NPPF [previously, Paragraph 101]), the Arup report concluded that the Stantec site was now "Not recommended for further consideration.

13 The Arup report is not referenced to give any weight to the draft allocations in the [emerging local plan] because the current allocation process is as flawed as the one for the last abortive Local Plan. It merely serves to do demonstrate how little reliance can be placed on the actions of what the Secretary of State rightly called “one of the worst authorities in terms of plan-making”.”

On 31 January 2024 and 12 February 2024, the Council responded to the issues raised by the Secretary of State. It did not ask the Secretary of State to consider the Arup Review. It did not respond substantively to the comments about the Arup Review and invited the Secretary of State to disregard the submissions from the other parties as they went beyond the remit of the Secretary of State’s letter and the case put forward by Cala and Headlands at the inquiry.

On 12 February 2024, the appellant sent detailed submissions to the Secretary of State about the matters raised by him. It did not respond to the comments about the Arup Review but stated that both Cala and Headland had “commented outside the remit above and our lack of response to their comments on subjects outside the requested areas does not imply that we are in agreement with them, nor that we attribute any veracity or validity to them”. The appellant did not ask the Secretary of State to consider the Arup Review.

Cala responded to Mr Parker’s reference to the Arup Review, by a letter from its planning consultants, Stantec UK Limited, dated 16 February 2024, which stated:

“……

I have consciously steered away from providing new evidence. However, paragraph 12 of Mr Parker's Statement makes reference (for the first time) to a Green Belt Review published by Arup in June 2023 (‘the Arup GBR’) that was not presented nor discussed at the Public Inquiry.

The Arup GBR was prepared as part of the Council's emerging evidence base in support of their draft Regulation 18 Local Plan. This evidence base and emerging plan carried no material weight in the determination of this appeal. We highlight the following points in particular:

• It was the subject of consultation and the consultation responses included vigorous objections to it. The Council's response to the consultation has not yet been published.

• It has not been relied upon by the Council in the context of the present appeal.

• It is inconsistent with the Council's evidence in this appeal (including concessions made in cross-examination).

• Is not referred to or relied upon in the Council's response letter dated 31st January 2024 which rightly invites the Secretary of State to ignore any new evidence outside the scope of DLUHC's request for comments on the implications of the revised NPPF and HDT results.

In agreement with the Council, I therefore respectfully request that the DLUHC disregards the comments made by Mr Parker in paragraph 12 of his statement.

If any reliance is to be placed upon those comments, the inquiry would need to be re-opened so that they could be the subject of cross-examination (which may also result in an application for costs). Reliance upon the Arup GBR without giving the Appellant the opportunity to cross-examine on it would be unlawful.”