Belt and braces

The fate of the Green Belt under the government's proposed National Planning Policy Framework has caused huge controversy. Tom Newcombe analyses the background.

On 25 July 2011 the Government published the draft National Planning Policy Framework (“NPPF”) for consultation which ended on 17 October 2011. Whilst many will have their own points of interest, concerns and issues raised in consultation, one issue that has particularly hit the headlines has been the potential impact on the Green Belt.

The aim of the NPPF is to bring together the Planning Policy Statements, Planning Policy Guidance notes and a few of the current planning Circulars. As a consultation document, whilst it is only a draft, it is a strong indication as a Government “direction of travel” and is therefore capable of being a material consideration when making a planning decision. To justify departure from this document, even in its current form (assuming it is given sufficient weight) will require robust evidence. PPG 2 is still the current Green Belt policy however the weight to be accorded to it must be significantly reduced as a result of the draft NPPF signalling its eventual demise.

The recent guidance from the Planning Inspectorate on 30 August confirmed Inspectors should now “approve development proposals that accord with statutory plans without delay, and grant permission where the plan is absent, silent, indeterminate or where relevant policies are out of date”. These words were deleted by PINS in September, but the NPPF as a material consideration remains valid.

A particular concern has been raised by organisations such as the National Trust, the Open Spaces Society and the Daily Telegraph as to the impact of the NPPF on green spaces. Concern has also specifically been that the NPPF is a dilution of Green Belt policy contained within PPG 2 and the presumption in favour of sustainable development might make development in the Green Belt an inevitability in some local authorities.

The National Trust for example has stated that “the framework is wrong in its overall tone: planning should not be used as a tool to deliver economic growth, and as it stands will result in inappropriate development which will scar the landscape for ever.”

Others have commented that the draft NPPF is effectively a green light to development in the Green Belt where otherwise it would not have been allowable.

The Country Land and Business Association have taken a different position, claiming that the “overreaction surrounding the reform of the planning system is provoking ill-informed opposition to the presumption in favour of sustainable development proposed by the NPPF".

There is a general perception that councils will be forced to approve all applications if they fail to produce evidence of a five year supply of appropriate sites but there is also an increasing voice from those who see no benefit in maintaining the Green Belt Status quo. For example Conservative Peer, Baroness Gardiner Parks has tabled an amendment to seek to allow development on the Green Belt if sufficient infrastructure and services exist to make the development “reasonable”.

In defence of the NPPF, Planning Minister Greg Clark has stated that “the only way new homes would be built [on the Green Belt] would be under the new Community Right to Build Schemes, which would allow development of up to 12 homes to be built if supported by 90% of the communities”. (The Consultation on Neighbourhood Planning (October 2011) suggests 51% as the threshold).

Communities Minister, Andrew Stunell stated “the Government is committed to safeguarding the natural historic environment and has made this work very clear in the NPPF”.

So what is the truth?

There are many references in the draft NPPF to the “presumption in favour of sustainable development” and this has been the most notable element of it. It is clear from the NPPF that, if brought into force without amendment, planning permission would have to be granted where the local plan is absent, silent, indeterminate or where relevant policies are out of date. However this is not to apply where the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the NPPF as a whole.

Firstly, as a result of a long-standing PPG 2, Green Belt boundaries and policies are well established, and arguably few local authorites’ Green Belt policies could be said to be “out of date”, even if the Local Plan is somewhat aged. Secondly, the NPPF does contain Green Belt policy, which is also a material consideration along with the presumption of sustainable development.

Leaving aside the rest of the NPPF, the section on the Green Belt is at first glance a dilution of PPG 2 as it is almost 10% of the size. However, closer inspection does reveal that actually most of the provisions of PPG 2 have simply been reordered, shortened and inserted in the NPPF with almost identical effect.

The same five purposes of the Green Belt are listed in paragraph 134 of the NPPF as are contained in PPG 2, the provisions for the designation of Green Belts are largely identical to PPG2 and elements such as Community Forests and the Very Special Circumstances test remain unchanged. Case law surrounding Very Special Circumstances will also still apply and provides the majority of the technical detail in this area.

It is perhaps worth noting that paragraph 135 of the draft NPPF obligates a local authority to “plan positively to enhance to beneficial use of the Green Belt” which is a slightly different tone to PPG 2 which states that “use of land [within Green Belt] has a positive role to play in fulfilling objectives (with uses listed)”. In addition, paragraph 141 of the NPPF (which relates to the inclusion of villages within the Green Belt) is worded differently to that contained in PPG 2. The NPPF is now providing more encouragement to local authorities not to include villages within the Green Belt unless absolutely necessary.

There is an interesting policy at 146 within the NPPF in relation to renewable energy projects within the Green Belt stating that “developers will need to demonstrate Very Special Circumstances if projects are to proceed”. It then goes onto say that “such Very Special Circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources”. This argument is nearly always a key component of the planning argument when promoting a renewable energy development and therefore this statement would appear to suggest that renewable energy development is in fact appropriate development rather than inappropriate development provided perhaps it is of sufficient scale.

Focus has perhaps inevitably been on alterations to the existing exceptions to the rule that construction of new buildings in the Green Belt is inappropriate development:

• Buildings for agricultural and forestry are still accepted, however, there is no reference now to any withdrawal of Permitted Development rights.
• The provision of facilities for outdoor sport and recreation is still (at paragraph 1.44) an exception to inappropriate development as per paragraph 3.4 of PPG 2, however it should be noted that it is now the provision of “appropriate” facilities rather than “essential” facilities. Often arguments were around the essential nature of such facilities at planning inquiries.
• Arguably the key change is that extension, alteration or replacement of a “building” is now proposed to be allowed, whereas previously this was only available for a “dwelling“. It is therefore now possible to extend or alter a building providing that it does not result in a disproportionate addition over an above the original size and it is also possible to replace the building completely, provided the new building is not materially larger than the one it replaces. This will be of considerable use for commercial landowners within the Green Belt and for householders with outbuildings which do not fall within the curtilage of their dwelling and therefore couldn’t take advantage of Permitted Development rights.
• Limited infilling of villages and limited affordable housing for local community needs are still acceptable development in the Green Belt as per paragraph 3.4 of PPG 2 although there is no guidance as to what “limited“ means.
• There has also been a significant change in relation to previously developed sites. Under PPG 2 this was limited to “major developed sites” and these had to be identified within the local plan. Under the NPPF, the policy is for “limited infilling of the partial or complete redevelopment of previously developed sites (excluding temporary building) whether redundant or continuing use, which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it and the existing development”. No mention of identification in the local plan and a considerable relaxation of Annex C which contained detailed provisions relating to footprints, building heights and infilling.

Finally, it is worth noting that other forms of development also appropriate in the Green Belt (as per PPG 2) include: mineral extraction (but no mention of the high environmental standards and restoration); engineering operations; local transport and infrastructure (undefined, but not just Park and Ride as with PPG 2); re-use of buildings (without needing to be capable of reuse without complete reconstruction); and development under Community Right to Build Orders (the provenance of which will be interesting to see).

In summary, whilst many of the concerns raised about potential increase in development in the countryside on “greenfield” land may have considerable merit, the draft NPPF does not currently significantly dilute the strength of protection offered to the Green Belt. It is only in draft form, and the rhetoric from both sides of the fence makes it difficult to predict what changes might be made to the final form, but for the time being at least the Green Belt should remain almost as protected as it was previously, for better or for worse.

Tom Newcombe is a Senior Associate at regional law firm Birketts LLP. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..