Development in the Green Belt – back to planning by appeal?

This article considers the implication of recent planning appeal decisions in the context of getting land released from the green belt. It considers the extent to which the supply of housing can be said to contribute to “very special circumstances”.

Christopher Pincher, the minister for housing, has signalled the need for the housing market to deliver new homes in a speech to the planning inspectorate this month, highlighting the need for the delivery of housing for both first time buyers and also for those who are older so as to “get the chain moving”. In order for any meaningful progress to be made in terms of increasing the number of homes delivered, surely one now has to look to the potential for green belt release.

At the local plan level, any release tends to be highly emotive. Inevitably there is an element of political reluctance to drive meaningful green belt release via the system. However, it appears that the planning appeal system is playing an increased role in terms of release of green belt sites. Of particular interest are several recent planning appeal decisions involving the release of land from the green belt and what matters can be considered to constitute “very special circumstances” for the grant of planning permission in the green belt.

The NPPF attaches great importance to the Green Belt and paragraph 133 states that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. Inappropriate development within the Green Belt is, by definition, harmful and should not be approved except in very special circumstances.

It has long been held that unmet housing need would not be held to constitute “very special circumstances” for the purpose of releasing land from the green belt, and this view has been propped up by a Written Ministerial Statement issued in December 2015. However, several recent appeal decisions have given the ministerial statement little weight as a material consideration, on the basis that it pre-dates the revised NPPF. Had this been a key provision then this would have been included in the updated NPPF and associated guidance.

Turning to the recent appeal decisions:

(i) In the London Borough of Bromley a developer lodged a planning appeal on account of the non determination of a planning application for 151 residential units on land within Metropolitan Open Land (MOL) with the buildings ranging from 8 to 4 storeys in height. MOL has the same level of protection as green belt. The scheme provided a number of financial contributions for education, health and infrastructure. Although the land was located in the MOL, it was adjacent to a railway station and the Government’s Housing White Paper is clearly in favour of higher density housing going in this location.

The matter centred on whether the harm by way of inappropriateness could be outweighed by other considerations, and if so, whether this would amount to very special circumstances. The decision letter makes a number of interesting points. Firstly that considerations do not have to be rare or uncommon to be special. Secondly, ministerial speeches and government commissioned reports have long set out in “stark relief” the scale of the housing crisis, with the future position for general and affordable housing looking “bleak”.

The starting point is that substantial weight is attached to any harm to the MOL by reason of inappropriateness. Very special circumstances cannot be said to exist unless the potential harm is clearly outweighed by other considerations. In this instance the conclusion was that “taken together, the other considerations in this scheme clearly outweigh the harm identified and amount to the very special circumstances necessary to justify the development”. The appeal was allowed.

(ii) Similarly, there was an appeal against the non determination of a planning application by the City of York Council for planning permission for 266 new homes on land in the green belt. The scheme provided affordable housing, travellers’ pitches, open space and made contributions towards education, sports provision and road infrastructure. It was agreed from the outset between the appellant and the Council that the proposal would be inappropriate development in the green belt, and the decision therefore turned on whether “very special circumstances” could be found to exist.

The Inspector in this appeal also considered the effect that the scheme would have on the five purposes served by the Green Belt (para 134 NPPF) and concluded that the proposal would not result in harm to those purposes. This finding, alongside the provision of 266 market and affordable homes “weigh significantly in support of the proposal”. The overall finding was that the substantial harm by reason of inappropriateness and the effect on openness could be outweighed by the other considerations and so very special circumstances did exist. Again, the appeal was allowed.

Clearly, housing need can be a significant component of very special circumstances and it would appear that the inspectorate is increasingly willing to reach that conclusion. The direction of travel is that the appeal system seems to be a more attractive option for those with green belt sites (rather than seeking green belt release). It will be interesting to see what the forthcoming Housing White Paper has to say about meaningful green belt release, particularly in view of the conservation provisions contained within the Environment Bill.