The concept of the UK green belt dates back to the late nineteenth century, when policy-makers decided that surrounding urban areas with a permanent ring of open space would prevent urban sprawl and contribute to the health and wellbeing of communities.
The green belt is not a legal construct in its own right. Its role as a component of UK planning law was established in the Town and Country Planning Act 1947, although its definition has evolved significantly since then.
The government’s current policy on protecting the green belt is set out in Chapter 9 of the 2019 National Planning Policy Framework (NPPF).
Paragraph 136 of the NPPF is clear that: “Green belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans.”
Once exceptional circumstances for releasing green belt land have been established, paragraph 138 of the NPPF emphasises that sustainable patterns of development (outlined in Chapter 2 of the NPPF) will underpin any review of green belt boundaries.
The framework states that “plans should give first consideration to land which has been previously developed and/or is well-served by public transport” and should “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”.
Obtaining permission to build on the green belt is difficult, but not impossible and developers with green belt site allocations or draft allocations stand a much better chance of having their proposals approved if they meet or exceed the sustainability objectives set out in the NPPF.
What are ‘exceptional circumstances’?
The NPPF does not give a definition of the policy concept of exceptional circumstances.
There is, however, a strong body of case law establishing the principles of the exceptional circumstances test in relation to local plans and green belt alterations (see Compton Parish Council and others v Guildford Borough Council and another [2019] EWHC 3242 (Admin)).
These principles include:
- The fact that exceptional circumstances are not defined in the NPPF is held to be a deliberate policy decision so it can be flexible (see Calverton Parish Council v Nottingham City Council and others [2015] EWHC 1078 (Admin); [2015] PLSCS 130).
- The exceptional circumstances test is agreed to be less demanding than the very special circumstances test (see R (on the application of Luton Borough Council) v Central Bedfordshire Council [2015] EWCA Civ 537; [2013] PLSCS 156).
- There is no requirement that green belt land be released as a last resort, and it may in fact be that the green belt option is more sustainable than a non-green belt site (see IM Properties Development Ltd v Lichfield District Council [2015] EWHC 2077 (Admin); [2015] PLSCS 237.
- Exceptional circumstances can be met by a single circumstance, or the accumulation or combination of several circumstances of varying natures which entitle the decision-maker to conclude they are sufficiently exceptional to warrant altering the green belt boundary (see Compton Parish Council).
- General planning needs, such as the need for ordinary housing (as opposed to affordable, social or retirement housing), industrial or commercial development, are not precluded from the exceptional circumstances test (see Compton Parish Council).
- Exceptional circumstances should be considered as a whole and in context (see Compton Parish Council).
- If provision of housing is part of the exceptional circumstances, the need to provide a buffer (ie additional housing above the identified need) for flexibility should contribute to those exceptional circumstances (see Compton Parish Council).
The exceptional circumstances test is therefore deliberately demanding, and needs to be satisfied at both strategic and site level.
Paragraph 137 of the NPPF states that, before concluding that exceptional circumstances for releasing green belt land exist, the applicant should be able to demonstrate that the local council has fully examined all other options.
For example, it is helpful to be able show clearly that the local authority’s housing plan has made as much use as possible of under-utilised sites and brownfield land, and that it has sought to optimise the density of development in line with policies outlined in chapter 11 of the NPPF.
The council should also be able to evidence that it has held discussions with neighbouring authorities about how they can help meet the identified development need.
What is ‘sustainable development’?
Chapter 2 of the NPPF outlines the government’s policy on sustainable development in terms of UK planning law.
The planning system sets three interdependent objectives for sustainable development, namely economic, social and environmental enhancement of a particular area, which should be pursued in the context of local circumstances, to reflect that area’s character, needs and opportunities.
Paragraph 138 of the NPPF states that authorities are required to 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.
Authorities therefore need to think about providing infrastructure that makes their proposal more sustainable – for example, bus services, cycle routes, park and ride facilities or contributions to railway links that will reduce the amount of traffic and associated CO2 emissions affecting the development site and the remaining green belt.
It may be that authorities have additional land in their portfolios that can be used for this purpose but, if not, they have to consider and demonstrate how to promote sustainable access.
Both the NPPF and related planning practice guidance urge developers to bring forward proposals that include an equivalent or similar amount of open space to the area proposed for development.
Including this provision makes it easier to gain approval for a proposed development, because it is possible to demonstrate significant enhancement to access, where there may have previously been little or no access to open space (for example, where the land being developed includes private playing fields not previously open to the public).
It is important to note that a proposal does not need to have no effect on openness, however, affordable housing is essential in residential development proposals in the green belt (see paragraph 145 of the NPPF).
It is usually in the landowner’s interest to accept what the council wants in terms of affordable housing, as trying to water this down can scupper approval for the entire development.
Meeting needs
Chapter 2 of the NPPF places considerable emphasis on the needs of a particular area and ensuring that development is designed to meet those needs.
In some cases, the needs may be principally economic, so commercial or infrastructural developments may be permitted in the green belt if they promise to create jobs for local people, or enable them to commute more easily. Generally, infrastructural developments tend to face less opposition than housing developments.
If there is a social need for a particular type of housing – such as affordable or sheltered housing – and the only available land for providing that housing is located in the green belt and/or the proposed development will free up other housing stock elsewhere, this may be viewed as meeting a sustainable development objective.
Housing development applications on green belt land have more chance of being approved if the proposed site is an allocation in a local authority’s emerging plan, and/or if part of the site is already developed.
It also helps if the local council concedes that green belt land should be released to meet an unmet housing need, especially if that council lacks a five-year plan for residential development. Educational need can also help sway decisions in favour of development.
Gaining approval
The problems experienced by those seeking to build on green belt land have given rise to some reflections about the strategy developers and their advisers should be following when it comes to proposals.
Because developing in the green belt is a challenge, it is important that proposals are brought forward in a way that gives them the best chance of success, particularly in terms of how their proposals contribute to sustainability objectives with detailed examples and arguments.
Green belt developments are always going to be contentious, but engaging with the council early can help avoid some pitfalls further down the line.
Developers must do the necessary homework on their sites and have detailed reports, including reports from sustainability experts, to back up their arguments, especially when it comes to defending proposals against objections.
Susan Simpson is a partner and Dinah Patel is a director in the real estate team at Fieldfisher LLP
