50 Shades Of Grey Belt

Q: How do you eat an elephant?

A: One bite at a time.

So as well with the Government’s proposed reforms to the planning system, announced on 30 and 31 July 2024.

I reckon the whole elephant looks like this:

Gulp.

Maybe even this will be more than you or I can chew but for this blog post I am only going to focus on the proposed changes to green belt policy. Much of the text which follows is by my Town Legal colleagues Susannah Herbert and Aline Hyde to whom much thanks…

Green Belt – Plan Making

Local planning authorities will be required “to undertake a review where an authority cannot meet its identified housing, commercial or other need without altering Green Belt boundaries.” (This is in addition to removing the December 2023 additions which set out the circumstances in which local planning authorities would not be required to undertake a Green Belt review).  The amendment defines “exceptional circumstances” to “include instances where an authority cannot meet its identified need for housing, commercial or other development through other means”.

A sequential test is proposed, to guide changes to Green Belt boundaries through local plans – “This will ask authorities to give first consideration to PDL [previously developed land] within the Green Belt, before moving on to other grey belt sites, and finally to higher performing Green Belt sites where these can be made sustainable. …, land that is safeguarded by existing environmental designations, for example National Parks, National Landscapes and Sites of Special Scientific Interest, will maintain its protections.

18. The aim of this approach is to ensure that low quality Green Belt is identified first, while not restricting development of specific opportunities which could be made more sustainable (for example, on land around train stations). This is in recognition that not all PDL or ‘Grey Belt’ will be in the most suitable or sustainable location for development. As such, it is right that local planning authorities are empowered to make decisions that best support the development needs and sustainability objectives of their area through the plan-making process. There is clear expectation that local planning authorities should seek to meet their development needs in full. However, we remain clear that the release of land should not be supported where doing so would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. We propose changes to paragraph 147 of the NPPF to achieve this approach.”

The proposed wording is as follows:

142 (previously 144) (comparison to Sept 2023) Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans. Exceptional circumstances include, but are not limited to, instances where an authority cannot meet its identified need for housing, commercial or other development through other means. In these circumstances authorities should review Green Belt boundaries and propose alterations to meet these needs in full, unless the review provides clear evidence that such alterations would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period. Where a need for changes to Green Belt boundaries has been established through strategic policies, detailed amendments to those boundaries may be made through non- strategic policies, including neighbourhood plans.

144.(previously 146)  When drawing up or reviewing Green Belt boundaries, the need to promote sustainable patterns of development should be taken into account. Strategic policy- making authorities should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary. Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to previously-developed land in sustainable locations, then consider grey belt land in sustainable locations which is not already previously-developed, and only then consider other sustainable Green Belt locations. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.

Grey belt

Grey belt will be defined (in the glossary at Annex 2 to the NPPF) as follows:

“Grey belt: For the purposes of Plan-making and decision-making, grey belt is defined as land in the Green Belt comprising Previously Developed Land and any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes (as defined in para 140 of this Framework) but excluding those areas or assets of particular importance listed in footnote 7 of this Framework (other than land designated as Green Belt).”

The Government is  “interested in whether further support is needed to assist authorities in judging whether land makes a limited contribution to the Green Belt purposes. They propose incorporating the following into the glossary appended to the NPPF:

 Land which makes a limited contribution to the Green Belt purposes will:

  • Not strongly perform against any Green Belt purpose; and
  • Have at least one of the following features:
    i. Land containing substantial built development or which is fully enclosed by built form
    ii. Land which makes no or very little contribution to preventing neighbouring towns from merging into one another
    iii. Land which is dominated by urban land uses, including physical developments
    iv. Land which contributes little to preserving the setting and special character of historic towns    ”

Many local planning authorities will have evidence base documents which assess the effectiveness of parcels of land against the purposes of designating land as Green Belt but these documents do not necessarily observe this draft methodology. The extent to which they will be useful in guiding decision-making, at least in the short term until they can be revisited, is then unclear.

[Comment from me – “limited contribution”: huge room for debate!]

Green Belt Decision Making

The definition of “inappropriate development” is to be significantly restricted. At present in order for development on previously developed land not to be “inappropriate development” (and therefore be subject to the “very special circumstances” test) then (unless it would contribute to meeting an identified affordable housing need) it “must not have a greater impact on the openness of the Green Belt than the existing development”. Draft revised paragraph 151 waters down this test to “would not cause substantial harm to the openness of the Green Belt”.

[Another comment from me – “substantial harm”: huge room for debate, as it is already in the case of proposed development that would contribute to meeting an identified affordable housing need.]

In terms of the Grey Belt concept, the Government proposes to insert a new paragraph in the NPPF which will make clear that, “in instances where a local planning authority cannot demonstrate a 5-year housing land supply or is delivering less than 75% against the Housing Delivery Test, or where there is unmet commercial or other need, development on the Green Belt will not be considered inappropriate when it is on sustainable ‘grey belt’ land, where golden rules for major development are satisfied, and where development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole.” 

{Comment from me: “unmet commercial or other need“, “fundamentally undermine” – yes you’re there before me.]

This is set out in the new paragraph 152:

“152. In addition to the above, housing, commercial and other development in the Green Belt should not be regarded as inappropriate where:

a. The development would utilise grey belt land in sustainable locations, the contributions set out in paragraph 155 below are provided, and the development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole; and

b. The local planning authority cannot demonstrate a five year supply of deliverable housing sites (with a buffer, if applicable, as set out in paragraph 76) or where the Housing Delivery Test indicates that the delivery of housing was below 75% of the housing requirement over the previous three years; or there is a demonstrable need for land to be released for development of local, regional or national importance.

c. Development is able to meet the planning policy requirements set out in paragraph 155.”

In terms of development on non-Grey-Belt-Green-Belt, the Government states “Our proposal limits release via this route to grey belt, including PDL — reaffirming our commitment to a plan-led system by maintaining restrictions on the release of wider Green Belt land. It would, as now, be possible for other Green Belt land to be released outside the plan-making process where ‘very special circumstances’ exist, but such cases would remain exceptional.” 

Therefore, in theory, the test of “very special circumstances” for Green Belt development remains unchanged but the existence of Grey Belt and the priority given in policy may make it harder to make the case for development on non-Grey-Belt-Green-Belt (although the emphasis on sustainable locations in the sequential test may also benefit some non-Grey-Belt-Green-Belt locations).

Golden Rules and Viability for Green Belt development

The proposed “Golden Rules” for Green Belt development are set out in a new paragraph 155:

“a. In the case of schemes involving the provision of housing, at least 50% affordable housing [with an appropriate proportion being Social Rent], subject to

viability;

b. Necessary improvements to local or national infrastructure; and

c. The provision of new, or improvements to existing, green spaces that are accessible to the public. Where residential development is involved, the objective should be for new residents to be able to access good quality green spaces within a short walk of their home, whether through onsite provision or through access to offsite spaces.

156. Regarding the provision of green space, development proposals should meet local standards where these exist in local plans, for example local planning policies on access to green space and / or urban greening factors. Where no locally specific  standards exist, development proposals should meet national standards relevant to the development. These include Natural England standards on accessible green space and urban greening factor and Green Flag criteria.”

According to paragraph 155, these will apply “Where major development takes place on land which has been released from the Green Belt through plan preparation or review, or on sites in the Green Belt permitted through development management”.  This refers to major development.  However, paragraph 152 in respect of Grey Belt appears to refer to all potential development on Grey Belt needing to meet these Golden Rules.

The Government considers that “Green Belt land can deliver more affordable housing, infrastructure and environmental contributions, as the value of the land in its existing use is generally low and the Green Belt designation reduces the hope value associated with the prospect of securing planning permission.”  However, it does acknowledge that contributions that can be secured will vary because of varied house prices, abnormal costs, CIL rates or higher existing use values and therefore, they believe that “it is necessary to allow the limited use of viability assessments, where negotiation is genuinely needed for development to come forward, particularly in relation to affordable housing requirements. However, this cannot be an excuse to inflate landowner or developer profits at the expense of the public good”.

Additional guidance on viability considerations for development in the Green Belt is provided in Annex 4.  This is headed “Viability in Relation to Green Belt release”.  It proposes to set a specific benchmark land value.

It also provides that:

“- if land released from Green Belt is transacted above the benchmark land value and cannot deliver policy-compliant development, then planning permission should not be granted, subject to other material considerations;

–  if policy compliant development can be delivered, viability assessment should not be undertaken, irrespective of the price at which land is transacted, and higher levels of affordable housing should not be sought on the grounds of viability;

-Where land is transacted below the benchmark land value but still cannot deliver policy- compliant development, it is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. Where a viability negotiation to reduce policy delivery has been undertaken, a late-stage review should be conducted to assess whether further contributions are required.”

The consultation notes that there is a spectrum of views of appropriate premia above existing use value ranging between 3 times EUV to 10-40 times EUV.  The Government is “particularly interested in the impact of setting BLV at the lower end of this spectrum.”  

The consultation then immediately goes on to mention the potential for the use of compulsory purchase powers where such land is not brought forward on a voluntary basis.  In this case compensation would be assessed under the statutory no-scheme principle rules set out in Part 2 of the Land Compensation Act 1961 so that any increases or decreases in the value of land caused by the proposed scheme would be ruled out.  The “hope value” for alternative development would reflect the “Golden Rules” set out above.  However, the consultation also states that “Use of compulsory purchase powers may also include use of directions to secure ‘no hope value’ compensation where appropriate and justified in the public interest. A comprehensive justification for a no hope value direction (e.g., which includes a high proportion of vital affordable housing being delivered) will strengthen the argument that a direction is in the public interest. This would align with the Government’s aspiration for high levels of affordable housing to be delivered on these sites.”  

Question 43 asks “Do you have a view on whether the golden rules should apply only to ‘new’ Green Belt release, which occurs following these changes to the NPPF? Are there other transitional arrangements we should consider, including, for example, draft plans at the regulation 19 stage?”.  As drafted, it is not clear when the Golden Rules, or the provisions of Annex 4 will apply.  At present, when land is released from the Green Belt through the plan making system, Green Belt policies no longer apply.  However, the proposed provisions are drafted to apply to “land released from Green Belt” so it will be important to have clear transitional provisions.

The Government’s clear intention expressed through the consultation is that development on Green Belt land is to be held to a higher standard and cannot be permitted without delivering a public benefit in the form of affordable housing, mitigating its own infrastructure impacts, and not undermining the overall strategic function of the designation.

More anon.

Simon Ricketts, 2 August 2024

Personal views, et cetera

Courtesy Vincent van Zalinge via Unsplash

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Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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