Proposed Main Modifications

Examination of Modification MM023 - Policy SP5 Countryside and the Green Belt;
Examination of Modification MM083 - Policy SP19 - Sites EL1, EL2, EL3 - to the east of Luton;
Examination of ED87A - Submission on Green Belt by Andrew Parkinson of Landmark Chambers on behalf of Save Our Green Belt 25 January 2018;
Examination of ED143 - Countryside and the Green Belt - the Green Belt Review and approach to safeguarded land;
Examination of ED161 - Green Belt Review by North Herts District Council in September 2018

THE REPRESENTOR'S ARGUMENTS

1) Introductory Comments

The fundamental objections raised concerning the above documents are:
* The vital question of the concept of 'Openness' in relation to the Green Belt.
* The flawed review by NHDC of the Green Belt in September 2018 (ED161) where 'Openness' is scarcely mentioned and which also fails to study the 'harm' arising from potentially releasing Green Belt land for development
* The relevance of these points to the proposed building on Green Belt land around Cockernhoe to meet the so-called unmet housing need arising from within Luton.

The NHDC Local Plan scarcely mentions 'Openness' in any of its commentaries about the Green Belt and also not in ED143 of 2016 which was the original NHDC detailed document which studied the Green Belt in depth. Furthermore, there is also very little mention of 'Openness' in the Modification documents listed above.
Evidence Document ED87A introduced the vitally important concept of 'Openness' in a paper submitted by Andrew Parkinson of Landmark Chambers in January 2018. This cited case law as will be explained below.
This led to a review by NHDC of the Green Belt in ED161 in September 2018 (fieldwork undertaken between June and August) which further escalated the importance of the Green Belt in the area east of Luton around Cockernhoe. Even then in this revised Green Belt Review, the only mentions of 'Openness' are to acknowledge the paper submitted in ED87A through a cursory comment in the introduction; it seems that NHDC really doesn't understand the significance of 'Openness' in relation to the Green Belt.
Furthermore, we contend that the NHDC Green Belt review of September 2018 was flawed. Despite awarding even more protection status to the Green Belt around Cockernhoe, the review fails to study 'harm' resulting from building on Green Belt land.
It may also be significant that this review was carried out by NHDC themselves with no input at all from external consultants; this contrasts significantly with the approach taken by neighbouring Welwyn/Hatfield District Council as will be explained below.
Despite the re-grading of the Green belt around Cockernhoe to an even higher status of 'significant'. NHDC persists in its quest to build on this Green Belt land to meet so-called 'unmet housing needs' arising from Luton.

2) The Background to 'Openness'

According to the National Planning Policy Framework (NPPF) documentation: "The fundamental aim of the Green Belt policy is to prevent urban sprawl by keeping land permanently open; and the essential characteristics of Green Belts are their openness and their permanence".

'Openness' is thus a fundamental cornerstone of Green Belt policy, though it has never been particularly well defined by governments in the NPPF documentation/guidance. Up until recently planners have viewed 'openness' as primarily a spatial designation, rather than a landscape designation, but there has been no clear indication about a visual component. Indeed 'harm' to 'openness' can be a vitally important element to the 'other harm' that local authorities have to assess when submitting proposals to build on the Green Belt.

It is clear in the NPPF guidelines that local authorities should regard construction of new buildings on Green Belt land as inappropriate except in specific circumstances in connection with the existing use of the land for e.g. outdoor sport, recreation, allotments etc.... as long as those facilities preserve the 'openness' of the Green Belt and do not conflict with the purposes of including land within it. Also allowed is limited infilling or partial or complete redevelopment of previously developed land (e.g. farm buildings), but such a development must not have a greater impact on the 'openness' of the Green Belt than the existing development or not cause substantial harm to the 'openness' of the Green Belt.

Over recent years there have been a number of legal cases brought by people seeking to protect the Green Belt from inappropriate development. The significance of two recent cases in the Court of Appeal is that they provide some form of template on 'openness' that local authority planners must follow.

The two recent relevant cases are Turner v Secretary of State for Communities & Local Government of May 2016; and Samuel Smith Old Brewery (Tadcaster) Ltd v North Yorkshire County Council of March 2018.

Without going into huge detail, the Turner case was an appeal by the plaintiffs to overturn local authority refusals to grant planning permission on Green Belt land. The Court of Appeal upheld the refusals.

In the Samuel Smith case, the appeal was against the local planning authority which had granted planning permission for a development on Green Belt land and the Court of Appeal upheld the appeal and thus refused the development. The Judges' ruling established that an assessment of a proposed development on the 'openness' of the Green Belt includes consideration of the impact of the proposed development upon the visual dimension of 'openness' as well as the spatial dimension of 'openness'.

The Simonicity legal blog of March 2018 succinctly captured the essence of this ruling. He wrote:

Essentially it means that: "the effect of a particular development on the 'openness' of the Green Belt cannot properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question - the very fact of its being there - without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer.

To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the 'openness' of the Green Belt would be artificial and unrealistic. A realistic assessment will often have to include the likely perceived effects on 'openness', if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the 'openness' of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy."

"In my view, therefore, when the development under consideration is within one of the five NPPF purposes and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would "preserve the 'openness' of the Green Belt". Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law."

(https://simonicity.com/2018/03/30/green-belt-developments).

To put it even more succinctly Zack Simons, Planning Barrister from the Landmark Chambers explains that:

* Visual impact of a development may be an aspect of Green Belt 'openness'
* Applying the NPPF purposes will mean an assessment will have to be made on the likely 'perceived' effects of 'openness', if any, as well as the spatial effects
* Whether there will be visual as well as spatial effects on 'openness' depends on the facts and will be for the decision-maker to judge
* But the NPPF policy 'requires' the decision-maker to reach a judgement on that question one way or another. Focusing only on the spatial aspects of built development may be a legal error.
* 'Preserve' in the NPPF policy does not mean leave entirely unchanged. It means avoid 'harm' to 'openness'

Finally, the Government has indicated since 2013 that unmet housing need alone is not sufficient to amount to very special circumstances - a view that seems unlikely to change.

3) The Green Belt in the area around Cockernhoe

Therefore, it seems that the visual impact of 'openness' in the land to the east of Luton around Cockernhoe is now vitally important as Court of Appeal case law has decreed.

Nowhere in the original assessment of the potential developments on Green Belt land has NHDC considered 'openness' and from that 'harm to openness'.

For NHDC to ignore 'openness' is perhaps surprising especially given that their own consultants Peter Brett & Associates flagged this up most comprehensively and critically in their June 2016 Luton HMA and Site Selection Assessment Report - Critical Assessment of Site Selection.

In describing the land area around Cockernhoe to the east of Luton the report said:

"The eastern boundary of the built up area is generally well defined by a strong wide tree belt, in places supplemented by linear open space. This is an enduring boundary along a well-established landscape feature, which also makes a very important visual contribution to the containment of the built up area (hence reducing the sense of encroachment of the built- up area into the countryside); it also safeguards the countryside from the encroachment of Luton beyond the existing well-defined edge. Overall the northern part of the parcel (which is the part considered for this study) has a well-defined principally rural character and is free of encroachment from inappropriate development."

It goes on to say in relation to NHDC's assessment of the area around Cockernhoe for Green Belt purposes in terms of 'openness', that:

"Part of the assessment criteria for 'openness' uses the basis of relationship to built-up areas as the basis for the assessment; for example, if a site is bounded on two sides by development it would be deemed to contribute less to 'openness'. However, this is too simplistic; much depends upon the nature of the site and the boundaries of the adjoining development. The opposite could be said to be the case; if that site were to be largely free of development it may provide a very important perception of 'openness' which is enhanced as a result of its juxtaposition with development; or it may be that those adjoining built up edges are well contained by woodland for example such that the influence of the urban areas is contained. The south eastern part of parcel 212a (proposed allocation site EL3) is a case in point; even though there is a clear visual relationship between the edge of Luton and southern edge of Cockernhoe, there is a very clear sense of 'openness' between the two due to the undeveloped open nature of the arable land that separates them;

It adds later: "The distinction between the urban area and countryside is very pronounced with productive agricultural uses extending right up to the urban boundary with some areas having a surprising sense of rurality and remoteness despite the close proximity of Luton."

It continues: "It is our view that this area has very significant landscape and visual constraints and that the adverse effects of medium to large scale development (which is what is being proposed) will have a fundamental effect on the character of the area. This is reflected in a previous (The Landscape Partnership) study which identifies it as having a Low capacity for medium /large scale development (note - there is no 'No capacity' category).

"In this context it raises the question of whether there may be areas around other parts of Luton's periphery (i.e. outside North Herts) that are less sensitive and which have a greater capacity to accommodate significant growth".
In its conclusions to NHDC, the report states, inter alia:

"Whether if Luton is to be expanded, development on the part of its fringe within North Herts is an appropriate way of addressing the need in comparison with the potential role of other parts of Luton's fringe.

"That said, it is a striking feature of where the Council (NHDC) has got to that the scale of housing development in North Herts District to contribute to Luton's needs is presented as an 'offer', and is based on the capacity of sites put forward by promoters driven by ownerships primarily.
"This is a fundamentally different approach from one of determining the level of provision as part of a strategic and cooperative (though inevitably iterative) approach with all parties involved, and then seeking the best ways to make that provision having regard to all relevant considerations. The next step based on this position, and on an understanding of how the fringe of Luton performs, together with proper aspirations for what is wanted in place making terms, might then have been to establish the framework of an urban extension of Luton with an integrated structure for development, green infrastructure and connectivity set out, and into which the respective landowners and developers could work up their proposals.
"The approach the Council has followed is set out for instance in the 'Housing and Settlement Hierarchy Background Paper', and it is an approach that leaves the Local Plan process open to the investigation and promotion of other sites by developers who may or may not have come forward yet, and, in particular, to future claims by Luton Borough Council and others no doubt, that North Herts should do more.
"This report addresses this context and these potential consequences in two ways:
It seeks to demonstrate through an overview of setting, environmental constraints, landscape character and Green Belt considerations, given that there are natural limits to the amount of development that can be accommodated in an acceptable form as the expansion of Luton; and
It notes that within the acceptable limits of the expansion of Luton in this direction there may be other land that according to the criteria used could be developed that may not have been adequately investigated and for which clear reasons have not been stated as to why the land is not included in the Local Plan.

Inherent in this criticism by the consultants is that NHDC has not realistically sought with other neighbouring local authorities - in this case Luton Borough Council and Central Bedfordshire Council - to work with them to assess properly whether they could accommodate some or all of the proposed housing that NHDC proposes to build on Green Belt land around Cockernhoe to meet what is now seen as a scarcely justifiable unmet housing need arising from within Luton.

Whilst NHDC has for sure signed Statements of Common Ground with all its neighbouring local authorities these have all the hallmarks of box-ticking exercises in relation to the Duty to Co-operate under the Localism Act. None of the signed documents carry any substantive comment about how NHDC worked with these other authorities to assess whether other areas in their own jurisdictions could provide the space for the extra homes required by Luton. All the documents convey is - as Peter Brett & Associates put it - is that NHDC has made an offer to build these homes; an offer which the other authorities have, not surprisingly, accepted at face value and which subsequently has become inherent in the planning documentation across all the neighbouring local authorities.

It does seem increasingly likely that NHDC is particularly desperate to build these homes around Cockernhoe on protected Green Belt land. One has to ask why this is the case, given that 'openness' and 'harm to openness' have not featured at all in their assessments, and that the area in question is graded by NHDC itself as making a substantial contribution to the purposes of the Green Belt.

4) The flawed Green Belt review published by NHDC in September 2018

The original 2016 Green Belt designation for the area to around Cockernhoe carried out by NHDC had classified the area as making a 'significant contribution' to the purposes of the Green Belt in the two most important of the five key national NPPF guidelines. The NHDC study found that this area's significant contribution was measured against the two fundamental purposes, namely 1 and 3 below of the five NPPF purposes:
1.To check the unrestricted sprawl of large built-up areas;
2.To prevent neighbouring towns from merging into one another;
3.To assist in saving the countryside from encroachment;
4.To preserve the setting and special character of historic towns, and;
5.To assist in urban regeneration by encouraging the recycling of derelict and other urban land.

Unfortunately, the end result of this study, was that despite measures 1 and 3 being the most important and relevant criteria for this area of the Green Belt achieving a SIGNIFICANT score, the overall score across the four purposes, (purpose number 5 was clearly not relevant here), was downgraded to what is termed a MODERATE overall contribution by virtue of the fact that the two other scores, which are hardly related to this area and to its circumstances, were not rated as highly.

At the time this downgrading was criticised by Peter Brett & Associates in June 2016 who stated:

"The overall assessment that the parcel in the area adjoining Luton makes a 'moderate overall contribution' appears to be based on the premise that if land is found to make a significant contribution to only some of the purposes, then it performs less well in overall terms (this is a downside of numerical scoring systems). Green Belt purposes are of the same importance (there is no 'weighting') and if only one purpose is of high importance then the parcel is therefore making an important contribution to the Green Belt. On the basis of our observations, this parcel makes a 'significant' contribution to Green Belt purposes."

As a direct result of the paper on 'openness' presented to the Inspector on behalf of Save our Green Belt (ED87A), NHDC carried out the September 2018 review of its Green Belt assessments. Their review reversed and upgraded the Cockernhoe area from making a modest overall contribution to the purposes of the Green Belt to the higher rating of making a significant overall contribution.

It should be noted that in coming to this decision it took NHDC 2.5 years to follow the recommendations of their consultants Peter Brett & Associates in their June 2016 report to NHDC.

However this has not altered NHDC's view that the proposed development East of Luton should go forward. This is because, they say, it is deemed a strategic site and these sites are fundamental to the Plan's strategy. Also, it is the only one available to NHDC in this area that allows them under the Duty to Co-operate with neighbouring authorities to contribute to the so-called 'unmet needs' arising from within Luton.

It may be significant - given the criticism levelled at NHDC in their first Green Belt study of 2016 - that NHDC carried out their September 2018 Green Belt review themselves and it has not been critiqued or commented on by any outside consultants such as Peter Brett & Associates.
Fundamentally, this September 2018 Green Belt review has failed to consider the potential 'harm' that would arise to the Green Belt from the planned development around Cockernhoe.
It is instructive here to compare the approach of NHDC to that of neighbouring local authority Welwyn & Hatfield (W&H). In the W&H Local Plan examination, the Inspector asked the authority to identify which parts of the Borough's Green Belt are 'most essential' to its function and thus critical to remain as Green Belt.
W&H appointed consultants (Landuse.co.uk) to carry out the same type of task as was done by NHDC to ascertain which areas of Green Belt were deemed as making Significant or Moderate contributions in terms of Green Belt purposes. But then W&H went a stage further. This report "Welwyn Hatfield Green Belt Study Stage 3" was completed in March 2019.
It is notable, when reading the W&H Green Belt Study, how much credence is given in the report to 'openness', to a discussion of recent case law and definitions of 'openness'. This level of detail including land and aerial photographs of Green Belt land parcels contrasts most strongly with the scant and incomplete approach taken by NHDC.
The report from Landuse.co.uk stated that for land to be assessed as 'most essential' for Green Belt purposes there must be a very high level of 'harm' associated with its release from the Green Belt.
Areas of very high 'harm' were identified where there is:

* A particularly significant contribution to a single one of the first four national NPPF Green Belt purposes.

* A significant contribution to more than one of the first four national Green Belt purposes is judged to cause 'very high harm' and be 'most essential' to Green Belt purposes.

* A particularly strong impact on the defined Green Belt boundary, or on the integrity of the wider Green Belt.

The W&H report studied 95 parcels of land within the Green Belt. Comparing the application of Purposes 1 and 3 to these Green Belt parcels, (the same as for Cockernhoe which achieved a significant contribution to both purposes), we see that none of them achieved anything more than a 'limited' or 'no contribution to Purpose 1 (checking the sprawl of large built up areas).
Against Purpose 3 (to assist the safeguarding the countryside from encroachment) 71 of the parcels received a 'significant contribution' grading; the remaining 24 getting only a 'limited' or 'no contribution' rating.
(NB for purposes of clarity it should be noted that several of these parcels of W&H Green Belt land scored highly on other NPPF purposes - by virtue of different landscapes and circumstances.)
The report then considered the assessment of 'harm' to the Green Belt if these parcels were released for development. In this instance the 95 parcels of land were subdivided down into 184 smaller parcels for examination. Sixty-one of these parcels had a 'very high' or' high' harm rating (20 'very high' and 41 as 'high').
The final element of the report then classified 16 of those sites as having a 'most essential' Green Belt rating. One of these is the area around Woolmer Green which is close to Knebworth in North Hertfordshire.
The Woolmer Green/Knebworth Green Belt parcel is in many ways similar to the land around Cockernhoe and thus it is useful for comparison.
The Woolmer Green area has a Green Belt gap between it and Knebworth of only 400 metres across undeveloped, visually open farmland. The gaps in the north-south settlement chain in W&H are narrow, so land which preserves the local landscape identity by forming an undeveloped countryside gap is considered very important in Green Belt terms and therefore designated as 'most essential'.
This is very similar to the narrow strip of land between the Cockernhoe area in North Hertfordshire and the Luton town boundary.
But tellingly, the Green Belt around Cockernhoe has a significant contribution against both Purposes 1 and 3 so making this area even stronger than the land in W&H around Woolmer Green/Knebworth (which rated as significant against only Purpose 3) and which is described as 'most essential' to the purposes of the Green Belt.
Paragraph 136 of the NPPF states quite clearly that 'once established Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified."
Para 144 states: When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special
circumstances' will not exist unless the potential harm to the Green Belt by reason
of inappropriateness, and any other harm resulting from the proposal, is clearly
outweighed by other considerations.

'Harm' in the Green Belt context is therefore vitally important. NHDC should have considered 'harm' in its slapdash review of September 2018. If there is to be any consistency in local planning and if NHDC had used the detailed analysis employed by the W&H consultancy there is little doubt that the area to the east of Luton would be designated as suffering considerable 'harm' to the Green belt and therefore it should be re-graded as ' most essential' to Green Belt purposes.

Furthermore, Central Bedfordshire Council and Luton Borough Council commissioned a joint study into the Green Belt (Central Bedfordshire Green Belt Study Stage 3) of January 2018. This covered 80 sites in Central Bedfordshire and 8 sites in the Luton Borough area and was carried out by the same consultancy (landuse.co.uk) and to the same level of detail. So it also assessed which parcels of land were regarded as potentially suffering from ' harm' to the Green Belt if released for development and from that gave a grading as to how many of those parcels would be deemed as 'most essential' to Green Belt purposes.

Conclusions

We contend that:

* NHDC should have followed the comprehensive approach of three of its neighbouring local authorities - and commissioned detailed and independent studies into the 'openness' of its Green Belt areas earmarked for development and from that identified which parcels of land would suffer from 'harm' and hence assessing needs as to how essential the land is to Green Belt purposes.
* We are confident that if this approach had been followed, the Green Belt area around Cockernhoe would have been designated as likely to suffer 'very high harm' from potential development and would have been designated as 'most essential' for Green Belt purposes.
* We believe that the September 2018 Green Belt Review carried out by NHDC was thin, selective and nowhere near detailed enough - even though it regraded the Cockernhoe Green Belt area as making a 'significant overall contribution to the purposes of the Green Belt'.
* We argue that the Inspector should have identified these shortcomings as the Inspector examining the Welwyn & Hatfield Local Plan has done and required a complete re-assessment of the Green Belt plans in North Hertfordshire to be carried out properly.
* There needs to be consistency in local planning and its methodology and Inspectors have to be cognisant of what is going on in their neighbouring authorities' areas of examination.
* Fundamentally, we contend that the draft NHDC Local Plan, its modifications and Evidence Documents examined in this representation reveals that this aspect of the Plan is unsound and should be dismissed.

* Finally - is it too fanciful to suggest that there appears to be strong grounds for an independent inquiry into how NHDC has conducted itself in relation to its almost obsessive desire to build large numbers of homes on Green Belt land around Cockernhoe. Also, why it continues to promote this policy, despite many areas of investigation on a variety of different topics which have been documented by representations and which all point to deep flaws in the Council's approach. Everything points to NHDC desperately seeking to massage its work, its statistics and its whole approach to justify a pre-planned and pre-determined outcome with no consideration for the well-being of the communities of Cockernhoe, Mangrove Green and Tea Green, as well as the sanctity and transparency of the robust planning process that is required and the protection of the Green Belt which its residents/constituents in this part of North Hertfordshire so earnestly desire.

Examination of Modification MM023 - Policy SP5 Countryside and the Green Belt;
Examination of Modification MM083 - Policy SP19 - Sites EL1, EL2, EL3 - to the east of Luton;
Examination of ED87A - Submission on Green Belt by Andrew Parkinson of Landmark Chambers on behalf of Save Our Green Belt 25 January 2018;
Examination of ED143 - Countryside and the Green Belt - the Green Belt Review and approach to safeguarded land;
Examination of ED161 - Green Belt Review by North Herts District Council in September 2018

THE REPRESENTOR'S ARGUMENTS

1) Introductory Comments

The fundamental objections raised concerning the above documents are:
* The vital question of the concept of 'Openness' in relation to the Green Belt.
* The flawed review by NHDC of the Green Belt in September 2018 (ED161) where 'Openness' is scarcely mentioned and which also fails to study the 'harm' arising from potentially releasing Green Belt land for development
* The relevance of these points to the proposed building on Green Belt land around Cockernhoe to meet the so-called unmet housing need arising from within Luton.

The NHDC Local Plan scarcely mentions 'Openness' in any of its commentaries about the Green Belt and also not in ED143 of 2016 which was the original NHDC detailed document which studied the Green Belt in depth. Furthermore, there is also very little mention of 'Openness' in the Modification documents listed above.
Evidence Document ED87A introduced the vitally important concept of 'Openness' in a paper submitted by Andrew Parkinson of Landmark Chambers in January 2018. This cited case law as will be explained below.
This led to a review by NHDC of the Green Belt in ED161 in September 2018 (fieldwork undertaken between June and August) which further escalated the importance of the Green Belt in the area east of Luton around Cockernhoe. Even then in this revised Green Belt Review, the only mentions of 'Openness' are to acknowledge the paper submitted in ED87A through a cursory comment in the introduction; it seems that NHDC really doesn't understand the significance of 'Openness' in relation to the Green Belt.
Furthermore, we contend that the NHDC Green Belt review of September 2018 was flawed. Despite awarding even more protection status to the Green Belt around Cockernhoe, the review fails to study 'harm' resulting from building on Green Belt land.
It may also be significant that this review was carried out by NHDC themselves with no input at all from external consultants; this contrasts significantly with the approach taken by neighbouring Welwyn/Hatfield District Council as will be explained below.
Despite the re-grading of the Green belt around Cockernhoe to an even higher status of 'significant'. NHDC persists in its quest to build on this Green Belt land to meet so-called 'unmet housing needs' arising from Luton.

2) The Background to 'Openness'

According to the National Planning Policy Framework (NPPF) documentation: "The fundamental aim of the Green Belt policy is to prevent urban sprawl by keeping land permanently open; and the essential characteristics of Green Belts are their openness and their permanence".

'Openness' is thus a fundamental cornerstone of Green Belt policy, though it has never been particularly well defined by governments in the NPPF documentation/guidance. Up until recently planners have viewed 'openness' as primarily a spatial designation, rather than a landscape designation, but there has been no clear indication about a visual component. Indeed 'harm' to 'openness' can be a vitally important element to the 'other harm' that local authorities have to assess when submitting proposals to build on the Green Belt.

It is clear in the NPPF guidelines that local authorities should regard construction of new buildings on Green Belt land as inappropriate except in specific circumstances in connection with the existing use of the land for e.g. outdoor sport, recreation, allotments etc.... as long as those facilities preserve the 'openness' of the Green Belt and do not conflict with the purposes of including land within it. Also allowed is limited infilling or partial or complete redevelopment of previously developed land (e.g. farm buildings), but such a development must not have a greater impact on the 'openness' of the Green Belt than the existing development or not cause substantial harm to the 'openness' of the Green Belt.

Over recent years there have been a number of legal cases brought by people seeking to protect the Green Belt from inappropriate development. The significance of two recent cases in the Court of Appeal is that they provide some form of template on 'openness' that local authority planners must follow.

The two recent relevant cases are Turner v Secretary of State for Communities & Local Government of May 2016; and Samuel Smith Old Brewery (Tadcaster) Ltd v North Yorkshire County Council of March 2018.

Without going into huge detail, the Turner case was an appeal by the plaintiffs to overturn local authority refusals to grant planning permission on Green Belt land. The Court of Appeal upheld the refusals.

In the Samuel Smith case, the appeal was against the local planning authority which had granted planning permission for a development on Green Belt land and the Court of Appeal upheld the appeal and thus refused the development. The Judges' ruling established that an assessment of a proposed development on the 'openness' of the Green Belt includes consideration of the impact of the proposed development upon the visual dimension of 'openness' as well as the spatial dimension of 'openness'.

The Simonicity legal blog of March 2018 succinctly captured the essence of this ruling. He wrote:

Essentially it means that: "the effect of a particular development on the 'openness' of the Green Belt cannot properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question - the very fact of its being there - without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer.

To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the 'openness' of the Green Belt would be artificial and unrealistic. A realistic assessment will often have to include the likely perceived effects on 'openness', if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the 'openness' of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy."

"In my view, therefore, when the development under consideration is within one of the five NPPF purposes and is likely to have visual effects within the Green Belt, the policy implicitly requires the decision-maker to consider how those visual effects bear on the question of whether the development would "preserve the 'openness' of the Green Belt". Where that planning judgment is not exercised by the decision-maker, effect will not be given to the policy. This will amount to a misunderstanding of the policy, and thus its misapplication, which is a failure to have regard to a material consideration, and an error of law."

(https://simonicity.com/2018/03/30/green-belt-developments).

To put it even more succinctly Zack Simons, Planning Barrister from the Landmark Chambers explains that:

* Visual impact of a development may be an aspect of Green Belt 'openness'
* Applying the NPPF purposes will mean an assessment will have to be made on the likely 'perceived' effects of 'openness', if any, as well as the spatial effects
* Whether there will be visual as well as spatial effects on 'openness' depends on the facts and will be for the decision-maker to judge
* But the NPPF policy 'requires' the decision-maker to reach a judgement on that question one way or another. Focusing only on the spatial aspects of built development may be a legal error.
* 'Preserve' in the NPPF policy does not mean leave entirely unchanged. It means avoid 'harm' to 'openness'

Finally, the Government has indicated since 2013 that unmet housing need alone is not sufficient to amount to very special circumstances - a view that seems unlikely to change.

3) The Green Belt in the area around Cockernhoe

Therefore, it seems that the visual impact of 'openness' in the land to the east of Luton around Cockernhoe is now vitally important as Court of Appeal case law has decreed.

Nowhere in the original assessment of the potential developments on Green Belt land has NHDC considered 'openness' and from that 'harm to openness'.

For NHDC to ignore 'openness' is perhaps surprising especially given that their own consultants Peter Brett & Associates flagged this up most comprehensively and critically in their June 2016 Luton HMA and Site Selection Assessment Report - Critical Assessment of Site Selection.

In describing the land area around Cockernhoe to the east of Luton the report said:

"The eastern boundary of the built up area is generally well defined by a strong wide tree belt, in places supplemented by linear open space. This is an enduring boundary along a well-established landscape feature, which also makes a very important visual contribution to the containment of the built up area (hence reducing the sense of encroachment of the built- up area into the countryside); it also safeguards the countryside from the encroachment of Luton beyond the existing well-defined edge. Overall the northern part of the parcel (which is the part considered for this study) has a well-defined principally rural character and is free of encroachment from inappropriate development."

It goes on to say in relation to NHDC's assessment of the area around Cockernhoe for Green Belt purposes in terms of 'openness', that:

"Part of the assessment criteria for 'openness' uses the basis of relationship to built-up areas as the basis for the assessment; for example, if a site is bounded on two sides by development it would be deemed to contribute less to 'openness'. However, this is too simplistic; much depends upon the nature of the site and the boundaries of the adjoining development. The opposite could be said to be the case; if that site were to be largely free of development it may provide a very important perception of 'openness' which is enhanced as a result of its juxtaposition with development; or it may be that those adjoining built up edges are well contained by woodland for example such that the influence of the urban areas is contained. The south eastern part of parcel 212a (proposed allocation site EL3) is a case in point; even though there is a clear visual relationship between the edge of Luton and southern edge of Cockernhoe, there is a very clear sense of 'openness' between the two due to the undeveloped open nature of the arable land that separates them;

It adds later: "The distinction between the urban area and countryside is very pronounced with productive agricultural uses extending right up to the urban boundary with some areas having a surprising sense of rurality and remoteness despite the close proximity of Luton."

It continues: "It is our view that this area has very significant landscape and visual constraints and that the adverse effects of medium to large scale development (which is what is being proposed) will have a fundamental effect on the character of the area. This is reflected in a previous (The Landscape Partnership) study which identifies it as having a Low capacity for medium /large scale development (note - there is no 'No capacity' category).

"In this context it raises the question of whether there may be areas around other parts of Luton's periphery (i.e. outside North Herts) that are less sensitive and which have a greater capacity to accommodate significant growth".
In its conclusions to NHDC, the report states, inter alia:

"Whether if Luton is to be expanded, development on the part of its fringe within North Herts is an appropriate way of addressing the need in comparison with the potential role of other parts of Luton's fringe.

"That said, it is a striking feature of where the Council (NHDC) has got to that the scale of housing development in North Herts District to contribute to Luton's needs is presented as an 'offer', and is based on the capacity of sites put forward by promoters driven by ownerships primarily.
"This is a fundamentally different approach from one of determining the level of provision as part of a strategic and cooperative (though inevitably iterative) approach with all parties involved, and then seeking the best ways to make that provision having regard to all relevant considerations. The next step based on this position, and on an understanding of how the fringe of Luton performs, together with proper aspirations for what is wanted in place making terms, might then have been to establish the framework of an urban extension of Luton with an integrated structure for development, green infrastructure and connectivity set out, and into which the respective landowners and developers could work up their proposals.
"The approach the Council has followed is set out for instance in the 'Housing and Settlement Hierarchy Background Paper', and it is an approach that leaves the Local Plan process open to the investigation and promotion of other sites by developers who may or may not have come forward yet, and, in particular, to future claims by Luton Borough Council and others no doubt, that North Herts should do more.
"This report addresses this context and these potential consequences in two ways:
It seeks to demonstrate through an overview of setting, environmental constraints, landscape character and Green Belt considerations, given that there are natural limits to the amount of development that can be accommodated in an acceptable form as the expansion of Luton; and
It notes that within the acceptable limits of the expansion of Luton in this direction there may be other land that according to the criteria used could be developed that may not have been adequately investigated and for which clear reasons have not been stated as to why the land is not included in the Local Plan.

Inherent in this criticism by the consultants is that NHDC has not realistically sought with other neighbouring local authorities - in this case Luton Borough Council and Central Bedfordshire Council - to work with them to assess properly whether they could accommodate some or all of the proposed housing that NHDC proposes to build on Green Belt land around Cockernhoe to meet what is now seen as a scarcely justifiable unmet housing need arising from within Luton.

Whilst NHDC has for sure signed Statements of Common Ground with all its neighbouring local authorities these have all the hallmarks of box-ticking exercises in relation to the Duty to Co-operate under the Localism Act. None of the signed documents carry any substantive comment about how NHDC worked with these other authorities to assess whether other areas in their own jurisdictions could provide the space for the extra homes required by Luton. All the documents convey is - as Peter Brett & Associates put it - is that NHDC has made an offer to build these homes; an offer which the other authorities have, not surprisingly, accepted at face value and which subsequently has become inherent in the planning documentation across all the neighbouring local authorities.

It does seem increasingly likely that NHDC is particularly desperate to build these homes around Cockernhoe on protected Green Belt land. One has to ask why this is the case, given that 'openness' and 'harm to openness' have not featured at all in their assessments, and that the area in question is graded by NHDC itself as making a substantial contribution to the purposes of the Green Belt.

4) The flawed Green Belt review published by NHDC in September 2018

The original 2016 Green Belt designation for the area to around Cockernhoe carried out by NHDC had classified the area as making a 'significant contribution' to the purposes of the Green Belt in the two most important of the five key national NPPF guidelines. The NHDC study found that this area's significant contribution was measured against the two fundamental purposes, namely 1 and 3 below of the five NPPF purposes:
1.To check the unrestricted sprawl of large built-up areas;
2.To prevent neighbouring towns from merging into one another;
3.To assist in saving the countryside from encroachment;
4.To preserve the setting and special character of historic towns, and;
5.To assist in urban regeneration by encouraging the recycling of derelict and other urban land.

Unfortunately, the end result of this study, was that despite measures 1 and 3 being the most important and relevant criteria for this area of the Green Belt achieving a SIGNIFICANT score, the overall score across the four purposes, (purpose number 5 was clearly not relevant here), was downgraded to what is termed a MODERATE overall contribution by virtue of the fact that the two other scores, which are hardly related to this area and to its circumstances, were not rated as highly.

At the time this downgrading was criticised by Peter Brett & Associates in June 2016 who stated:

"The overall assessment that the parcel in the area adjoining Luton makes a 'moderate overall contribution' appears to be based on the premise that if land is found to make a significant contribution to only some of the purposes, then it performs less well in overall terms (this is a downside of numerical scoring systems). Green Belt purposes are of the same importance (there is no 'weighting') and if only one purpose is of high importance then the parcel is therefore making an important contribution to the Green Belt. On the basis of our observations, this parcel makes a 'significant' contribution to Green Belt purposes."

As a direct result of the paper on 'openness' presented to the Inspector on behalf of Save our Green Belt (ED87A), NHDC carried out the September 2018 review of its Green Belt assessments. Their review reversed and upgraded the Cockernhoe area from making a modest overall contribution to the purposes of the Green Belt to the higher rating of making a significant overall contribution.

It should be noted that in coming to this decision it took NHDC 2.5 years to follow the recommendations of their consultants Peter Brett & Associates in their June 2016 report to NHDC.

However this has not altered NHDC's view that the proposed development East of Luton should go forward. This is because, they say, it is deemed a strategic site and these sites are fundamental to the Plan's strategy. Also, it is the only one available to NHDC in this area that allows them under the Duty to Co-operate with neighbouring authorities to contribute to the so-called 'unmet needs' arising from within Luton.

It may be significant - given the criticism levelled at NHDC in their first Green Belt study of 2016 - that NHDC carried out their September 2018 Green Belt review themselves and it has not been critiqued or commented on by any outside consultants such as Peter Brett & Associates.
Fundamentally, this September 2018 Green Belt review has failed to consider the potential 'harm' that would arise to the Green Belt from the planned development around Cockernhoe.
It is instructive here to compare the approach of NHDC to that of neighbouring local authority Welwyn & Hatfield (W&H). In the W&H Local Plan examination, the Inspector asked the authority to identify which parts of the Borough's Green Belt are 'most essential' to its function and thus critical to remain as Green Belt.
W&H appointed consultants (Landuse.co.uk) to carry out the same type of task as was done by NHDC to ascertain which areas of Green Belt were deemed as making Significant or Moderate contributions in terms of Green Belt purposes. But then W&H went a stage further. This report "Welwyn Hatfield Green Belt Study Stage 3" was completed in March 2019.
It is notable, when reading the W&H Green Belt Study, how much credence is given in the report to 'openness', to a discussion of recent case law and definitions of 'openness'. This level of detail including land and aerial photographs of Green Belt land parcels contrasts most strongly with the scant and incomplete approach taken by NHDC.
The report from Landuse.co.uk stated that for land to be assessed as 'most essential' for Green Belt purposes there must be a very high level of 'harm' associated with its release from the Green Belt.
Areas of very high 'harm' were identified where there is:

* A particularly significant contribution to a single one of the first four national NPPF Green Belt purposes.

* A significant contribution to more than one of the first four national Green Belt purposes is judged to cause 'very high harm' and be 'most essential' to Green Belt purposes.

* A particularly strong impact on the defined Green Belt boundary, or on the integrity of the wider Green Belt.

The W&H report studied 95 parcels of land within the Green Belt. Comparing the application of Purposes 1 and 3 to these Green Belt parcels, (the same as for Cockernhoe which achieved a significant contribution to both purposes), we see that none of them achieved anything more than a 'limited' or 'no contribution to Purpose 1 (checking the sprawl of large built up areas).
Against Purpose 3 (to assist the safeguarding the countryside from encroachment) 71 of the parcels received a 'significant contribution' grading; the remaining 24 getting only a 'limited' or 'no contribution' rating.
(NB for purposes of clarity it should be noted that several of these parcels of W&H Green Belt land scored highly on other NPPF purposes - by virtue of different landscapes and circumstances.)
The report then considered the assessment of 'harm' to the Green Belt if these parcels were released for development. In this instance the 95 parcels of land were subdivided down into 184 smaller parcels for examination. Sixty-one of these parcels had a 'very high' or' high' harm rating (20 'very high' and 41 as 'high').
The final element of the report then classified 16 of those sites as having a 'most essential' Green Belt rating. One of these is the area around Woolmer Green which is close to Knebworth in North Hertfordshire.
The Woolmer Green/Knebworth Green Belt parcel is in many ways similar to the land around Cockernhoe and thus it is useful for comparison.
The Woolmer Green area has a Green Belt gap between it and Knebworth of only 400 metres across undeveloped, visually open farmland. The gaps in the north-south settlement chain in W&H are narrow, so land which preserves the local landscape identity by forming an undeveloped countryside gap is considered very important in Green Belt terms and therefore designated as 'most essential'.
This is very similar to the narrow strip of land between the Cockernhoe area in North Hertfordshire and the Luton town boundary.
But tellingly, the Green Belt around Cockernhoe has a significant contribution against both Purposes 1 and 3 so making this area even stronger than the land in W&H around Woolmer Green/Knebworth (which rated as significant against only Purpose 3) and which is described as 'most essential' to the purposes of the Green Belt.
Paragraph 136 of the NPPF states quite clearly that 'once established Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified."
Para 144 states: When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special
circumstances' will not exist unless the potential harm to the Green Belt by reason
of inappropriateness, and any other harm resulting from the proposal, is clearly
outweighed by other considerations.

'Harm' in the Green Belt context is therefore vitally important. NHDC should have considered 'harm' in its slapdash review of September 2018. If there is to be any consistency in local planning and if NHDC had used the detailed analysis employed by the W&H consultancy there is little doubt that the area to the east of Luton would be designated as suffering considerable 'harm' to the Green belt and therefore it should be re-graded as ' most essential' to Green Belt purposes.

Furthermore, Central Bedfordshire Council and Luton Borough Council commissioned a joint study into the Green Belt (Central Bedfordshire Green Belt Study Stage 3) of January 2018. This covered 80 sites in Central Bedfordshire and 8 sites in the Luton Borough area and was carried out by the same consultancy (landuse.co.uk) and to the same level of detail. So it also assessed which parcels of land were regarded as potentially suffering from ' harm' to the Green Belt if released for development and from that gave a grading as to how many of those parcels would be deemed as 'most essential' to Green Belt purposes.

Conclusions

We contend that:

* NHDC should have followed the comprehensive approach of three of its neighbouring local authorities - and commissioned detailed and independent studies into the 'openness' of its Green Belt areas earmarked for development and from that identified which parcels of land would suffer from 'harm' and hence assessing needs as to how essential the land is to Green Belt purposes.
* We are confident that if this approach had been followed, the Green Belt area around Cockernhoe would have been designated as likely to suffer 'very high harm' from potential development and would have been designated as 'most essential' for Green Belt purposes.
* We believe that the September 2018 Green Belt Review carried out by NHDC was thin, selective and nowhere near detailed enough - even though it regraded the Cockernhoe Green Belt area as making a 'significant overall contribution to the purposes of the Green Belt'.
* We argue that the Inspector should have identified these shortcomings as the Inspector examining the Welwyn & Hatfield Local Plan has done and required a complete re-assessment of the Green Belt plans in North Hertfordshire to be carried out properly.
* There needs to be consistency in local planning and its methodology and Inspectors have to be cognisant of what is going on in their neighbouring authorities' areas of examination.
* Fundamentally, we contend that the draft NHDC Local Plan, its modifications and Evidence Documents examined in this representation reveals that this aspect of the Plan is unsound and should be dismissed.

* Finally - is it too fanciful to suggest that there appears to be strong grounds for an independent inquiry into how NHDC has conducted itself in relation to its almost obsessive desire to build large numbers of homes on Green Belt land around Cockernhoe. Also, why it continues to promote this policy, despite many areas of investigation on a variety of different topics which have been documented by representations and which all point to deep flaws in the Council's approach. Everything points to NHDC desperately seeking to massage its work, its statistics and its whole approach to justify a pre-planned and pre-determined outcome with no consideration for the well-being of the communities of Cockernhoe, Mangrove Green and Tea Green, as well as the sanctity and transparency of the robust planning process that is required and the protection of the Green Belt which its residents/constituents in this part of North Hertfordshire so earnestly desire.