I’ve been a little quiet this month because, quite frankly, I had the busiest start to 2020 and I did not see it coming – hopefully it is a sign of things to come! I’ve been working on a few new planning applications, ready for the spring (pending bat survey season!), and completed a large block (20+) of residential valuations across the West Midlands for the administration of an estate. Add into this my dad recovering from a hip replacement, horses and dogs and a work experience student and it’s been a blur!
So – this news post has arisen as a result of me turning down several jobs in the last fortnight. Bad for business you may think, however, when I say I will tell you if I don’t think I can help I really do mean it. If I think a proposal is a non-starter, I am not the right person to try and fight it for you. I am all for trying a different argument, or perhaps pushing the percentages a little, on a case by case basis but I find it so disheartening that there is still a very large amount of bad advice out there and people are taking it, and paying for it.
The jobs in question all stood within the Green Belt and, interestingly, the advice that some prospective clients had had (from a sector I will not name!) was that their proposals were acceptable in principle and two of them had even undertaken works already, at what would have been a substantial cost.
Green Belt. One of the most commonly misunderstood planning tools, despite being one of the longest standing spatial planning tools in the system. It has a fundamental aim – to prevent urban sprawl by keeping land permanently open. It is very commonly mixed up, by members of the public, with greenfield land which is simply land which has not been previously developed as opposed to brownfield land. Brownfield land is previously developed land (and indeed agricultural and forestry is excluded from this) as defined by the National Planning Policy Framework 2019 (the Framework).
Paragraph 143 of the Framework is clear. Inappropriate development is, by definition, harmful to Green Belt and should not be approved except in very special circumstances (VSC). Paragraph 145 requires LPA’s to regard the construction of new buildings as inappropriate in the Green Belt but lists exceptions which continue into paragraph 146. Impact on openness is implicitly taken into account in the listed exceptions except where there is a specific requirement to consider actual effect on openness. Therefore, for those exceptions within paragraph 145 where the effect of the proposal on openness is not expressly stated as a determinative factor in gauging inappropriateness, there is no requirement to assess the impact of the development upon the openness of the Green Belt. Where development is found to be not inappropriate, applying paragraph 145 and 146 of the Framework, it should not be regarded as harmful either to openness of the Green Belt or to the purposes of including land in the Green Belt. This is confirmed in paragraph 17 of the judgement of the Court of Appeal in Lee Valley Regional Park Authority, R (on the application of) v Epping Forest District Council & Anor (Rev 1) [2016] EWCA Civ 404 (albeit it referred to the application of paragraph 89 or 90 of the original Framework).
The above is all well and good, though some case officers do, unfortunately, need to be reminded of this from time to time – especially if they are under pressure from local members and/or objectors seeking refusal. The largest area of confusion, in my experience, falls within those exceptions which carry a second test for example paragraph 145 b). This allows the provision of appropriate facilities, for the listed uses, but goes on to say AS LONG AS the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it. Similar examples of this approach are within paragraph 145 g) and paragraph 146. These contain a specific test about whether openness is preserved, in determining whether the proposal should be categorised as inappropriate development and there is lots of case law, and appeal decisions, which debate this.
Those who do manage to successfully pick up and tackle this specific test then often forget that, after dealing with the principle of the proposal within the Green Belt, they still need to go on and assess the proposal against the other Local Plan policies at the time. A proposal may be not inappropriate development in the Green Belt but fail to comply with other policies within the Local Plan. This is also of importance considering that even where paragraph 11 d) is engaged (the presumption in favour of sustainable development) there is a specific reference to granting consent UNLESS the application of policies in the Framework that protect areas provide a clear reason for refusing the development proposed. Green Belt is one of the policies within footnote six.
Anything which is inappropriate development would need to prove very special circumstances and, in all honesty, this is very hard to prove. If other considerations do not clearly outweigh the totality of the harm to the Green Belt it is unlikely that VSC exist. Personal circumstances are unlikely to clearly outweigh harm to the Green Belt.
I could quite literally “bang on” about Green Belt for pages and pages, however, my aim is to keep this short and flag up the most common mistakes I see from the public and some built environment professions. It is really really important, if your site is in the Green Belt, that it is approached in a structured manner to ensure it is assessed correctly. So, if you are a sister profession to planning such as a surveyor or architect, or a client looking at a proposal – if you aren’t sure do seek advice. Many planning consultants will happily undertake an appraisal to give you a steer and parameters for a proposal to have the best chance of approval. The cost of such advice could, literally, save you thousands and be the difference between a consent or no consent!