Green belts and brown fields: the horns of the development dilemma?

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1 Green belts and brown fields: the horns of the development dilemma? Martin Edwards & Christiaan Zwart, Barristers at 39 Essex Street As the modern town and country planning system reaches its half-century it faces more challenges than ever before. The problems that faced the architects of the 1947 Act are markedly different from today s pressing problems. Possibly the greatest challenge is finding enough land on which to build all the new homes and infrastructure facilities without desecrating what remains of the unspoilt parts of the country. Even a cursory glance at a map of the world s population vividly demonstrates that the British Isles, and the south-east of England in particular, contains some of the most densely populated parts of the globe. And yet it is the crowded south east where the development pressures are the greatest. Central to any strategic debate over the location of new development are two areas of planning policy that increasingly influence not just the location of new development but also its form. The first of these is the longstanding policy relating to green belts. Over the years green belt policy has become something of a sacred cow in planning. But as development pressures increase so does the pressure to release land from the green belt. Understandably planning authorities resist this with fervour. One reason for this is that there are no votes to be won in concreting over the green belt. In fairness, the courts have been equally stringent in their application of green belt policy. Related to the policy of green belts is the more recent policy of steering development towards previously developed land, more commonly known as brownfield land. So far the policy has worked well with national targets for new development on brownfield land being achieved or bettered. However the need for a substantial number of new homes in the period up to 2026, coupled with the debate over the location of new power plants, airports and other major infrastructure projects dictates that these policy areas may have to be revisited and some unpopular decisions taken. With regard to just housing, we are short of some 800,000 homes in England alone and over 220,000 new households are formed every year.

2 Undoubtedly green belts have been a major influence in curtailing lateral (as opposed to vertical) urban growth. Their origins can be traced back to Ebenezer Howard s proposals for garden cities but the policy began to take shape in Sir Raymond Unwin s proposals in the Second Report of the Greater London Regional Planning Committee of 1933 in which he recommended that a girdle of open space be preserved around the outskirts of London. There followed the Green Belt (London and the Home Counties) Act 1938 which enabled local authorities to control development in the designated area by buying up areas of land and accepting covenants from landowners against development. The Greater London Plan of 1944 built on this idea by directing overspill development to satellite towns established beyond the green belt. At the time it was never intended that green belts would be necessary around other urban areas. However, despite the development control and development plan regime established by the 1947 Act it became clear that there was a need to strengthen planning policy with regard to green belts. Consequently in Circular no.42 of 1955 the government urged local planning authorities to consider establishing green belts wherever desirable and as quickly as possible. National green belt policy is therefore 40 years old. If anything it has become increasingly restrictive and for developers proposing development within a green belt it represents a major, often insurmountable, hurdle. Consequently it is essential to understand the workings of the policy which is currently set out in PPG2: Green Belts, published in January The fundamental aim of Green Belt policy is stated to be to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. Originally the 1955 circular set out three stated purposes for green belts. Now there are five stated purposes of including land in Green Belts. These are: to check the unrestricted sprawl of large built-up areas; to prevent neighbouring towns from merging into one another; to assist in safeguarding the countryside from encroachment; to preserve the setting and special character of historic towns; and

3 to assist in urban regeneration, by encouraging the recycling of derelict and other urban land. The policy operates by extending the general policies controlling development in the countryside with a general presumption against inappropriate development within green belts. Such development should not be approved, except in very special circumstances. Paragraph 3.2 explains that inappropriate development is, by definition, harmful to the Green Belt. Thus applicants have to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State attaches substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development. It follows that the construction of new buildings inside a Green Belt is inappropriate development unless it is for the following purposes: agriculture and forestry (unless permitted development rights have been withdrawn; essential facilities for outdoor sport and outdoor recreation, for cemeteries, and for other uses of land which preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it; limited extension, alteration or replacement of existing dwellings; limited infilling in existing villages, and limited affordable housing for local community needs under development plan policies according with PPS3; or limited infilling or redevelopment of major existing developed sites identified in adopted local plans, which meets the criteria in paragraph C3 or C4 of Annex C to the PPG. Any development proposed within a green belt inevitably involves a two part test. The first is to consider whether the development proposed is appropriate development within the terms of the policy. If not then it is necessary to consider whether there are very special circumstances that outweigh both the harm caused by virtue of the development being inappropriate. Not surprisingly, the issue of very special circumstances has been the source of considerable litigation.

4 One key ruling confirms that there is no comprehensive list of very special circumstances. In Brentwood BC v Secretary of State for the Environment (1996) 72 P & CR 61 the court held that the list is endless and that it would be wrong for the court to restrict it. Furthermore, following R (Basildon BC) v First Secretary of State and Temple [2004] EWHC 2759 and Winter v First Secretary of State and South Cambridgeshire DC [2004] EWHC 2952 it is clear that the term very special circumstances describes an overall state of affairs and therefore can comprise a number of circumstances which are more than the sum of their parts. Most importantly, possibly, are a number of cases which have underlined that the circumstances must be very special and not just common or garden planning considerations. The absence of harm rarely amounts to very special circumstances. Other areas where green belt policy has led to considerable litigation include gypsy sites which also bring into play human rights considerations, proposals for extending or rebuilding existing dwellings and the re-use of existing buildings. It is suggested in the recently published White Paper Planning for a Sustainable Future that the government will make no fundamental change to green belt policy set out in PPG2 although the passage at paragraph 7.63 is rather opaque and suggests that there may be some changes made. However, if it is to be assumed that the basic green belt policy will remain, then it is clear that green belt land will make little or no contribution to relieving development pressures. So if not green belts where? Recent planning policy with regard to housing (in PPS3) and town centres (PPS6) have all incorporated a shift away from developing on virgin land or green field sites in favour of the re-use of derelict or previously developed land (colloquially brownfield land ). PPS3: Housing where in Annex B now defines this as: Previously-developed land is that which is or was occupied by a permanent structure, including the curtilage of the developed land and any associated fixed surface infrastructure. The definition includes defence buildings, but excludes: Land that is or has been occupied by agricultural or forestry buildings.

5 Land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures. Land in built-up areas such as parks, recreation grounds and allotments, which, although it may feature paths, pavilions and other buildings, has not been previously developed. Land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time (to the extent that it can reasonably be considered as part of the natural surroundings). There is no presumption that land that is previously-developed is necessarily suitable for housing development nor that the whole of the curtilage should be developed. This definition is different to its predecessor PPG3. Expressly included are the allotments, parks and recreation grounds of the town dweller. Amenity space is in short supply in heavily built up areas and perhaps as important to town dwellers as green fields to others. However, if the answer to safeguarding the greenbelt is high rise, vertical living this creates its own problems for the town dweller used to having his feet on the ground of his castle. Aside from issues of social disconnection from living many feet in the air, environmental problems of microclimate, wind tunnels, and overlooking from increased vantage points arise. Further, the amount of space inside the home also decreases. Furthermore, the different costs of development within brownfields inevitably feeds to the consumer of housing product. Therefore, there comes a time, and it may already be upon us, when the town dwellers shouts Enough and requires the relaxation of green belt as outdated and unsophisticated in the 21 st century planning world. The Government s new housing guidance may foreshadow this in paragraph 30: Where viable and practical, local planning authorities should consider allocating and releasing sites solely for affordable housing This enables small sites to be used, specifically for affordable housing in small rural communities that would not normally be used for housing because, for example, they are subject to policies of restraint. Of course, restraint policies clearly include PPG2 and trigger the very special circumstances test. It appears that the public interest in affordable housing may

6 now trump or itself be a very special circumstance. Further, the definition of affordable housing has now been changed by PPS3. Consequently, we may see the creation of brown field sites in the greenbelt on the basis of their initial affordable purpose for young or old. At the same time, the Government has telegraphed that PPG2 will be changed, but not fundamentally. Helpfully, the Environment Secretary has said that he considers the most important aspect of the Green Belts is that they are green. Green means many things to many people.