Following the announcement of a loosening of the rules on developing in the Green Belt, the UK Government published on 27 February guidance on the meaning of "Grey Belt" land and how this should be applied in decision-making. In addition, a number of interesting appeal decisions are beginning to give some shape to how this policy is being interpreted in practice.
We summarise below some of the key features of the new policy guidance and the concept of Grey Belt land insofar as it affects decision-making on individual applications, take a look at some of the recent appeals and attempt some preliminary conclusions on what to watch out for if you are thinking of developing in the Green Belt.
The Green Belt and Grey Belt
The general rule is that "inappropriate development" in the Green Belt should not be approved except in "very special circumstances." This has proved to be a very high standard.
All development in the Green Belt is "inappropriate" unless it falls within one of the exceptions listed in para 154 National Planning Policy Framework ("NPPF") (e.g., limited infilling, some mineral extraction, etc.) or fits within the new rules at para 155 onward.
Para 155 of the NPPF says that the development in the Green Belt should not be regarded as "inappropriate" if it fulfils four criteria:
a. it is on Grey Belt land and would not "fundamentally undermine" the purposes of the remaining Green Belt;
b. there is a "demonstrable need" for the type of development proposed;
c. the development is in a "sustainable location"; and
d. where major development that includes housing is proposed, the "Golden Rules" are met.
It is worth noting that although the Government has emphasised the urgent need for more housing as the main reason for releasing some Green Belt land for development, it is not restricted to that: any form of commercial development can potentially take place, provided criteria (a) to (d) above are met.
Key to criterion (a) is whether the land is properly categorised as Grey Belt land. "Grey Belt" land is defined as "previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b) or (d) in paragraph 143 of the NPPF" (emphasis added).
Paragraphs (a), (b) and (d) set out the relevant purposes of the Green Belt which are as follows:
a. to check the unrestricted sprawl of large built-up areas;
b. to prevent neighbouring towns merging; and
d. to preserve the "setting and special character" of historic towns.
Does the land "strongly contribute" to any of these purposes?
In order for land to fall within the definition of Grey Belt land, under the NPPF, it has to "strongly contribute" to at least one of the above purposes. This plainly involves a considerable degree of subjective judgment, with the consequent risk of inconsistent decision-making across the country. The new National Planning Policy Guidance ("NPPG") provides some assistance on this by setting out some examples of what might be a "strong" contribution versus a "moderate" or "weak" contribution for each of the above purposes.
It should be noted that, following a recent Court of Appeal decision, NPPGs now have the same legal status as the NPPF, so from now on this will be foremost in the minds of decision-makers.
In this blog we look at the guidance on purpose (a) – which has also been the subject of some planning appeal decisions – and consider how this could be applied in applications going forward.
Purpose (a) - what is meant by "urban sprawl"?
The NPPG says that the land will "strongly contribute" to purpose (a) if it is "free of existing development" and "lack[s] physical features in reasonable proximity that could restrict and contain [the] development".
In a decision issued three days before the NPPG was published, an appeal concerning the proposed development of 120 homes (including 50% affordable) was dismissed, amongst other reasons, on the basis that the land in question was not Grey Belt land even though it was, as described by the Inspector, "sandwiched" between the A40 and the M40 "with the A40 forming a boundary between [the site] and the main built-up area of Beaconsfield".
Presumably, had the Inspector had the benefit of the NPPG, the decision on whether the land was Grey Belt would have been different.
Another question that has caused confusion at appeals preceding the publication of the NPPG is what is meant by the term "sprawl". Here the decisions have been inconsistent.
One appeal concerned a proposal for a 49.35-MW temporary battery storage facility. On the question of "urban sprawl," the Inspector said that because the proposal was not "immediately adjacent" to built-up areas and was "separated by open fields," it was "visually discrete" and so did not undermine purpose (a).
However, in another appeal concerning a proposal for a quarry near Kidderminster, the appellant argued that the site did not contribute to purpose (a) "because it was not adjacent to any large built-up areas."
The Inspector disagreed. He said that purpose (a) was intended to restrain the "unrestricted straggling expansion of large built-up areas" and that this would "not be restricted to just the land that was contiguous with the built-up area".
The NPPG now says that land which is "adjacent or near to a large built up area [which] if developed [would] result in an incongruous pattern of development (such as an extended "finger" of development into the Green Belt" will likely "strongly" contribute to purpose (a).
This means that the Inspector in the Kidderminster appeal was correct to say that the land in question can still "strongly" contribute to purpose (a) even if it isn’t directly adjacent to a built up area. The NPPG only requires it to be "near" a built-up area and if developed would give rise to an "incongruous pattern" of development it will likely strongly contribute to purpose (a).
If it qualifies as Grey Belt land, the next question (in criterion (a)) is, does the proposal "fundamentally undermine" the purpose of the remaining Green Belt?
The purposes of the Green Belt are set out at para 143 NPPF. We have considered purposes (a), (b) and (d) above, but there are two further purposes of the Green Belt that need to be considered under this heading:-
c. to assist in safeguarding the countryside from encroachment; and
e. to assist in urban regeneration by encouraging the recycling of derelict and other urban land.
Purpose (c) is particularly tricky. Most new development in the Green Belt will at least have some encroachment effect and so will run counter to that purpose.
This was an issue in the battery storage appeal. The Inspector, though, emphasised the need for a material impact. In that case, he decided that the proposal did not meet this threshold.
The Inspector also considered criterion (e) in the battery storage case. In this context, he looked at the alternative sites assessment that had been undertaken as part of the application. This, he concluded, showed that there were not suitable alternative sites. Key to this conclusion was the availability of a grid connection, which is the biggest constraint for battery storage, as it is, for instance, for new data centres. It followed that the proposal did not conflict with purpose (e).
Developers of data centres and the like will be heartened by this acknowledgement.
The fact that the need for digital technology is now explicitly recognised in the NPPF (e.g., at para 85 et seq.) will also assist in the assessment of a proposal's compliance within criterion (b) (demonstrable need).
In the battery storage appeal, the Inspector drew on the National Policy Statement on energy (NPS EN-1), which emphasised the need for new energy storage facilities. This is interesting because the proposal in question was not a Nationally Significant Infrastructure Project to which the NPS applies. However, the Inspector emphasised that the NPS nevertheless is a material consideration in applications that fall under the Town and Country Planning Act. Again, this provides a boost to those considering new digital technology projects.
Separately, it is worth noting that "demonstrable" in the context of housing projects will be shown where a local authority lacks a five-year supply of deliverable housing sites.
This was the case in an appeal concerning the proposed demolition of one house and its replacement by two houses. The Council was unable to demonstrate a five-year supply, and, furthermore, housing delivery was below 75% of the housing requirement for the preceding three years. Consequently, demonstrable need was shown.
In that case, although the development concerned housing, because it was not a "major development" in the Green Belt, the "Golden Rules" (criterion (e)) did not also have to be met. These relate principally to enhanced affordable housing provisions and green infrastructure, but, to date, no appeal decision has been issued on the scope of the "Golden Rules."
In considering whether the proposal is in a "sustainable location" (criterion (c)), reference is made to paragraph 110 of the NPPF.
In the battery storage appeal, the Inspector said "the thrust of … Paragraph 110 appears to relate to development that would generate a significant level of vehicle movements, particularly by car". The Inspector said that, although there would be an increase in traffic during the construction phase, the overall increase would not be significant. He pointed out that there was no highways objection to the application.
Again, developers of data centres that have limited long-term vehicle impacts will need to demonstrate this through supporting information at the application stage.
Conclusion
We can expect a flurry of further appeal decisions on Grey Belt applications in the coming months, but, at this time, we can say that:-
- The publication of the NPPG has likely resolved some of the early questions raised in pre-NPPG appeal decisions, but because the NPPG now has the same legal weight as the NPPF, it is also possible that appeal decisions will get bogged down in the detail of what that document defines as a "strong" contribution to the 3 relevant purposes of the Green Belt which is why the Court of Appeal's decision to give the NPPGs the same status as the NPPF is to be regretted.
- The appeal decision seems to be emphasising that, whilst development may encroach on the openness of the countryside, applications will still succeed provided that this encroachment is not significant.
- Particular comfort can be inferred from these decisions on the future likely approach to applications for new digital infrastructure in the Green Belt.
- In view of the uncertainty around the meaning of Grey Belt and whether the criteria apply in an individual case, developers, in addition to preparing a case on why the proposal falls within para 155 (et seq.) of the NPFF, should also prepare an alternative case as to why "very special circumstances" should apply in the event that the proposal is regarded as "inappropriate development".
