Planning is now headline news and if there is one topic that is guaranteed to grab the attention of a certain type of broadsheet reader it is the perceived threat to the green belt.
For decades now the green belt has enjoyed a near-exalted status. While current national policy is to be found in chapter nine of the relatively recent National Planning Policy Framework, in reality it has remained constant and consistently restrictive.
However, green belt policy is not without its critics as some argue that it pushes up house prices and limits the ability to provide development where it is most needed.
There are about 1.6m ha of green belt land in England, equating to 13% of the land area. That amount has itself remained remarkably consistent in recent years. Yet whenever a green belt site comes forward for development the battle lines are quickly drawn, and it is sometimes forgotten that green belt policy is not a ban on development.
It has always allowed exceptions and two recent decisions illustrate this.
One major encroachment
In a decision letter dated 31 March 2015 the secretary of state granted permission on a called-in application for outline planning permission for mixed use development including up to 1,500 dwellings, community facilities and B1 and B8 employment uses on green belt land at Brockworth, Gloucestershire. By any account this is significant development in the green belt.
Consequently, the secretary of state acknowledged that, inevitably, this would cause harm to the green belt, along with other harm and that the minister of state for housing had noted in correspondence that the single issue of unmet demand for housing “would be unlikely to outweigh harm to the green belt”.
Furthermore, government policy as set out in a letter dated 31 August 2015 and followed up by a written ministerial statement on 17 December 2015 has stated that unmet need is unlikely to clearly outweigh harm to the green belt and any other harm so as to establish very special circumstances.
However, the decision letter then went on to acknowledge that considerable weight had been given to the housing benefits of the scheme and to the longstanding strategic planning aims for the logical expansion of the urban area as recommended by the joint core strategy examiner, so that the proposal could be described as plan-led development.
In addition, considerable weight was given to the economic benefits of the scheme. Overall these considerations were sufficient to clearly outweigh the harm to the green belt and other harm and to amount to special circumstances.
This is a very interesting decision. From its precise wording there is a suspicion that this is a political sleight of hand. While it could be argued that, in the particular circumstances of this case, the decision is logical, it is easy to see how this could be replicated elsewhere, especially in areas where there are high and persistent levels of unmet housing need.
Interpreting the NPPF
In addition, the Court of Appeal decision in Hopkins Homes Ltd v Secretary of State for Communities and Local Government; Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] PLSCS 90 is an important one on the meaning of paragraph 49 of the NPPF. Paragraph 49 states: “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
In Hopkins, it was held that the words “relevant policies for the supply of housing”, construed objectively in their proper context, means “relevant policies affecting the supply of housing”.
The concept of “policies for the supply of housing” is not confined to just those development plan policies that provide positively for the delivery of new housing in terms of numbers and distribution or allocation of sites; the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including green belt and general protection of the countryside policies – and policies whose purpose is to protect the local environment in one way or another by preventing or limiting development.
This is a decision that may have major consequences for applications and appeals going forward. The task for those local planning authorities unable to demonstrate a five-year supply of deliverable housing sites is made all the more onerous.
Is the green belt under threat?
Of course, it is sometimes forgotten that not all significant development in the green belt is contrary to policy, as the decision of the Court of Appeal in R (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404; [2016] PLSCS 120 has shown.
This concerned planning permission granted in the metropolitan green belt for a commercial greenhouse some 92,000m2 in area to be used for growing tomatoes and peppers.
The regional park authority objected unsuccessfully to the grant on a number of grounds including harm to the green belt. This was rejected by the court. Lindblom LJ said that the authority’s argument would mark an important and unheralded change to previous green belt policy. He agreed with Dove J at first instance that development that is not, in principle, “inappropriate” in the green belt is development that is “appropriate to the green belt”.
Green belt policy has always categorised agricultural buildings as “appropriate”.
Time will tell if there is the beginning of a shift in approach to green belt development but the warning to the many local planning authorities that do not have up-to-date local plans in place is clear.
Martin Edwards is a barrister at Cornerstone Barristers
