In pursuit of the Green Belt
The effect that the Green Belt policy has had in denying England needed development, proper connectivity and sustainable development patterns over decades is incalculable. It is an indictment of planning policy making from every hue of Government that nobody has ever faced up to its removal from national policy.
But things do change, and sometimes do so for unexpected reasons. Al Capone was convicted for tax evasion, rather than murder, but the outcome was still an improvement. Green Belt policy may persist, but its effect looks set to be fundamentally challenged by the words of the judges in the recent Court of Appeal case which planning history will refer to as the Richborough case.
This judgement relates to the interpretation of para. 49 of the National Planning Policy Framework, which says that, ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. 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.’
What the judgement has said about para. 49 that has created such a flutter is, in effect, that a wider interpretation of ‘relevant policies’ should prevail, and that this would embrace Green Belt policies.
Appeal decisions for some time have construed that some environmental policies can be ‘relevant policies’, and this has been found to be true, too, of development boundary policies that had not been reviewed regardless of the need for development to be accommodated at the settlement.
If Green Belt policies do now fall into the same group of ‘relevant policies’, the consequences of the judgement are potentially enormous. Developers have seen that even in the absence of a five-year supply, appeals for Green Belt sites have been consistently dismissed and hence are not worth pursuing.
Some local planning authorities have noted that, whilst there is an expectation that local plans will change the Green Belt to accommodate housing needs, the Green Belt will be protected from predatory appeals if they don’t make a local plan.
Areas of Green Belt are often not even considered in the search for development locations. Whatever the loftiness of the origins of Green Belt policy as a place-shaping policy or linked to the creation of garden cites surrounded by open land, Green Belt policy has effectively become a super development control policy used to refuse all manner of development. Hence on both counts, the policy certainly functions as a ‘policy for the supply of housing’.
On the interpretation of the judgement, Green Belt policy would no longer have the force it has had. Is the biggest change in the application of national policy in planning history about to happen?
An outmoded strategy
Green Belt policy will usually be out of date, in any case. It was conceived in the absence of development plans, but we now have a plan-led system, where planning authorities are required to make provision for development through positively prepared evidence-based plans. In most cases, arbitrarily drawn Green Belt ‘some miles wide’ has not been changed for decades.
Contrary to the views of some who would seek to use the argument to exclude Green Belt from the embrace of this judgement, development in the Green Belt is not, in principle, unsustainable development. There is nothing in law or policy to support the argument that Green Belt development conflicts with sustainable development, and indeed in practice, the presence of Green Belt often precludes the choice of the most sustainable locations in meeting development needs.
What happens now won’t be clear cut. If a policy is relevant, it will remain for the decision maker to determine the weight to be attached to it in particular circumstances. Even if a type of policy is in principle a ‘relevant policy ‘, in practice, it is most likely that relevant policies will not be automatically put aside. Rather, the harm of allowing development on the asset being protected, or the service otherwise being provided, will be examined.
For Green Belt policy, this is a particularly difficult and unpredictable issue, because of the way the policy reverses the normal decision-making process.
It is hard to say whether the Government will seek to recover Green Belt policy. They may be glad that the court’s actions have improved the prospect of delivering housing in the right places, or they may be anxious to re-establish Middle England’s version of Donald Trump’s wall.
In the meantime, local planning authorities may now be more inclined to carry out comprehensive Green Belt assessment to provide for development, to provide a case for certain parts of the Green Belt still being protected, and to prepare up-to-date local plans. Which would be a good thing.