Green Belt development: trends in 2021

National policy has for some time attached “great importance” to the Green Belt; its primary purpose being to prevent urban sprawl by keeping land permanently open; the NPPF states that the essential characteristics of Green Belts are their openness and their permanence[i].  Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans”[ii]. 

The Green Belt is highly protected in planning terms and development in the Green Belt is generally considered inappropriate (save for specified exceptions) and should not be approved except “very special circumstances” apply. Such “very special circumstances” will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.[iii]

Save where schemes comply with the limited NPPF exceptions, development of Green Belt land generally therefore requires either the release of the land from the Green Belt by the boundaries being redrawn through local plan revisions, or an applicant will need to meet the incredibly high hurdle of “very special circumstances” in order to obtain planning permission.

Amendments to boundaries

Despite paragraph 140 of the NPPF stating that once drawn, Green Belt boundaries are very hard to change, such changes are not infrequent, given the need for LPAs to allocate land for development. 

The High Court’s decision in Compton Parish Council v Guildford Borough Council [2019] EWHC 3242 (Admin) sets out helpful findings in relation to the “exceptional circumstances” test required to release land from the Green Belt; ultimately, it is a broad exercise of planning judgment for the decision-maker, with which the Court will not readily interfere. In the decision, Ouseley J made the following points:

• “Exceptional circumstances" is an undefined policy concept requiring planning judgment to be made;
• A finding by the Court that a factor relied on by a planning decision-maker as an "exceptional circumstance" was not in law capable of being one, is likely to require some caution and judicial restraint. The circumstances relied on, taken together, must rationally fit within the scope of "exceptional circumstances";
• "Exceptional circumstances" is a less demanding test than the development control test for permitting inappropriate development in the Green Belt, which requires "very special circumstances”;
• There is no requirement for more than one individual "exceptional circumstance"; such circumstances can arise due to the combination of circumstances, of varying natures, which entitle the decision-maker, in the rational exercise of a planning judgment, to say that the circumstances are sufficiently exceptional to warrant altering the Green Belt boundary;
• General planning needs, such as ordinary housing, are not precluded from the scope of exceptional circumstances; indeed, meeting such needs is often part of the judgment that such circumstances exist; the phrase is not limited to some unusual form of housing, nor to a particular intensity of need.

But what about areas where the plan making process has not resulted in land being released from the development or the LPA is otherwise stuck in planning inertia?  Unfortunately, developers find themselves in the unenviable position of meeting the far more demanding test for obtaining planning permission by demonstrating “very special circumstances”.

Very special circumstances

NPPF paragraph 148 states that when considering any planning application, LPAs should ensure that substantial weight is given to any harm to the Green Belt. In particular, “very special circumstances” will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.  Much like the issue of “exceptional circumstances”, what can constitute “very special circumstances” is therefore a matter of fact and degree and a matter of planning judgment with which the Court will be reluctant to interfere. Recent decisions however provide some guidance into circumstances where this high hurdle has been cleared.

The Colney Heath appeal decision (dated 14 June 2021[iv]) dealt with an appeal against the refusals of St Albans City & District Council and Welwyn Hatfield Borough Council to grant outline permissions for the erection of up to 100 dwellings, including 45% affordable and 10% self-build and ancillary works at Colney Heath.  In his decision, the Inspector found that the following constituted “very special circumstances” that justified inappropriate development in the Green Belt:

• Provision of market housing – neither council could demonstrate a five-year supply of deliverable homes with significant shortfall and therefore the delivery of housing represented a benefit that would make a positive contribution in both council areas;
• Provision of self-build – provision of sites and past completions were particularly poor and 10 self-build serviced plots at the appeal site would make a positive contribution to the supply in both authority areas.
• Provision of affordable housing – the historic evidence of poor delivery in both council areas of affordable housing led to substantial weight being afforded to the delivery of 45 affordable housing units.

The Focus School, Stoke Poges appeal decision (dated 24 May 2021[v]) dealt with an appeal brought by the Department for Education against the refusal of Buckinghamshire Council to grant planning permission for the redevelopment of the school site to be amalgamated with the Khalsa Academy next door to create a new 6th Form Centre and Multi-Use Space.  In the decision, the Inspector found that the following constituted “very special circumstances” that justified inappropriate development in the Green Belt:

• Need for additional accommodation at the school for exams, assemblies and PE – current pupils at the school were severely disadvantaged by inadequate facilities and there were no alternative locations within the existing building or otherwise that could satisfy this need but result in less Green Belt harm.
• Heritage balance – the harm to the significance of the listed building would be less than substantial, and significantly outweighed by the public benefits that the proposal would bring to the Academy.

The Burley-in-Wharfdale decision dated 3 March 2021 was a redetermination by the Secretary of State (SOS) following successful appeals against his original refusal in 2019 following a call in of the application in July 2018.  The SOS found “overwhelming” very special circumstances” which “clearly outweigh” the harm to the Green Belt and other harm[vi]:

• Delivery of 700 homes to meet established housing need where there were no other alternative site or sites at Burley-in-Wharfedale to meet that need;
• Recognised “significant, chronic and acute” shortfall in market and affordable housing in the Council’s area;
• Evidenced shortfall in primary education provision in the area which could be directly addressed by the planning permission for a school on the Site and the delivery of it to the Council for no material cost, coupled with the education CIL contribution that would allow the Council to deliver a new school;
• Substantial heritage and educational benefits that would arise from the development in relation to the Roman Temporary Camp;
• Delivery of clear and defensible future boundaries for the Green Belt around the site and the settlement of Burley-in-Wharfedale, together with the landscape buffers and the range of recreational and open space and ecological benefits that would go beyond mitigating the impacts of the proposal, but would also deliver real benefits to the area.

While the appeal decisions (and indeed case law) do not distil a one size fits all approach for establishing “very special circumstances” and certainly plenty of applications are still being refused, they do indicate that the hurdle can be met.

What next?

Clearly, the Green Belt is a central piece of the jigsaw of strategic planning.  By and large, however, very few applications for inappropriate Green Belt development are granted consent and therefore Green Belt development generally needs to be plan led.  While some councils are releasing land through their plan reviews, this can obviously be locally controversial. 

The time is right for a strategic overview of the Green Belt, to determine whether its purpose and policy remains up-to-date, and for a review of its boundaries.  However, successive administrations have shown no appetite to tackle this difficult issue, preferring instead to leave it to local authorities and inspectors or the SOS to make the difficult calls.

For more information on the above please contact Rachael Davidson or your usual Charles Russell Speechlys contact.

[i] NPPF para 137.
[ii] NPPF para 140.
[iii] NPPF paras 147-148.
[iv] Appeal references APP/B1930/W/20/3265925 and APP/C1950/W/20/3265926.
[v] Appeal reference APP/N0410/W/20/3264723.
[vi] Para 244 of the SOS decision letter.