Grey area: How proposed changes to green belt policy will impact councils
With the consultation on the new National Planning Policy Framework set to close this month, Adam Carey looks at the proposed changes to green belt release and the implications for councils and the planning system as a whole.
The Government’s recently launched consultation on changes to the National Planning Policy Framework (NPPF) contains a series of reforms to the framework that are aimed at delivering on its goal of building 1.5 million new homes by 2029.
A large part of this is the reintroduction of mandatory housing targets and a new standard methodology for calculating housing need – but important changes to green belt release have also been proposed as a means of delivering more homes.
If implemented, the proposals will introduce a new ‘grey belt’ designation, require councils to conduct green belt reviews as part of their local plan making process where the council is not meeting its housing need, and establish ‘golden rules’ for releasing green belt that include a requirement that at least 50% of the homes built on released land be affordable.
But some in the sector have questioned whether the reforms will see the Government reach its housebuilding targets within the four-year deadline it has set itself – while others warn that the changes will increase the burden on an already-creaking planning system.
The changes affecting green belt in a nutshell
In short, the changes include:
- LPAs will be required to review their green belt boundaries during local plan preparation if they are unable to meet an identified need for housing or other development.
- Golden rules will apply to reviewing green belt, including that 50% of all houses built on ex-green belt land be affordable.
- A new definition of grey belt is introduced into the NPPF in order to guide where revisions to green belt boundaries should take place.
- 'Grey belt' is formally defined as land in the green belt comprising previously developed land or land that makes a limited contribution to the five green belt purposes, but excluding those areas or assets of particular importance (habitats sites, SSSI, local green space, AONB, National Parks, heritage assets etc…)'
- Development in the green belt should not be considered inappropriate where it is located in the 'grey belt', where the local planning authority cannot demonstrate a five-year housing land supply or fail the 75% Housing Delivery Test, or where new policy criteria are met.
How will the changes impact local authorities?
The reversal of Michael Gove's changes to the NPPF, including reintroducing mandatory housing targets, has been broadly welcomed, and aspects of the changes to green belt release have also been met with support.
The inclusion of grey belt has garnered support from the sector as it introduces a sequence for releasing green belt land, which could simplify the process for councils.
Under the proposals, grey belt is defined as previously developed land, which could be land that either currently has or has had a building or hard surfaces in the past.
Describing the new sequence, Nigel Hewitson, a partner at Davitt Jones Bould, says: "There's a hierarchy you start with previously developed grey belt in a sustainable location if there's no such land suitable for development, then you look at the grey belt that either doesn't make contribution or makes a limited contribution to the purposes of the green belt in a sustainable location - and only then do you look at releasing non-grey belt - green belt."
However, Paul Brown KC of Landmark Chambers warns that the wording around the new category could be a battleground for litigation.
He describes the proposed criteria for whether or not something is grey belt as "touchy-feely", specifically referencing the line that says: "Development on the green belt will not be considered inappropriate when it is on sustainable 'grey belt' land, where golden rules for major development are satisfied, and where development would not fundamentally undermine the function of the green belt across the area of the plan as a whole."
He says the use of 'inappropriate' is a "major shift in greenbelt policy as it's the fact that something is inappropriate which is the biggest obstacle because as soon as it's inappropriate, you've got to demonstrate very special circumstances," Brown says.
"This isn't a matter for judicial review, but I can see this becoming a real battleground of inquiries and I think there will be a definite increase in the number of planning inquiries in the green belt where developers have now basically been given a basis on which they can argue they don't have to demonstrate very special circumstances at all."
Increased applications, reviews and appeals
Brown is not alone in warning that the changes will increase the number of planning inquiries. Concerns about the changes triggering a torrent of applications from developers and green belt reviews have also been raised.
According to Sabah Siddiq, who previously worked at Wycombe District Council, HB Public Law and Bracknell Forest Borough Council before specialising in planning law in private practice, the requirement to conduct a green belt review where a local authority is not meeting its housing target will add yet "another layer" of complexity to plan-making.
Siddiq adds: "The local planning authorities would now have to consider reviewing their green belt boundaries in their Local Plan and identify grey belt land for potential development, defined in the draft NPPF as 'low quality land' to meet some of the local planning authorities housing needs.
"This is likely to require additional work for local planning authorities in identifying grey belt land', who are already overstretched and under-resourced."
Simon Ricketts, a partner at leading planning law firm Town Legal, agrees that the changes will add pressure, noting that the introduction of the grey belt is likely to lead to "significantly more appeals".
"The greyness of the green belt is in the eye of the beholder, and so developers will bring forward many sites on the basis that they consider them to be grey belt.
"Local authorities will be resisting that in relation to many of those sites - so there's that immediate clash of views."
He continues: "But secondly, with more applications coming forward, without anything really addressing lack of resources within local government and planning departments, you're going to see inevitably more clogged up processes and with developers' strategies being to basically get to appeal and assessed against the current national policies as quickly as they can."
All of these additional concerns add to what Rachel Mckoy, Director of Law & Governance at the London Boroughs of Newham (Monitoring Officer) and Havering, says is an already long-winded business.
Describing the complexity involved in plan-making, she says: "As with any local authority, we have our quotas on the level of affordable housing, and then the tenure splits and so forth, but once you get into the real negotiation of it all you just end up facing those viability arguments or appeals or getting the deed of variations in and all of that needs resource.
"So it's a big giant circle which can consume you."
What should accompany the changes to the green belt is an increase in resourcing for councils, she says.
"What I've seen really asked for is a proper coordinated funding strategy for local authorities to recruit all those resources that they need.
"The officers, the training, legal, surveyors, everything."
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What is the green belt for? The proposed changes to the green belt have prompted conversations online about the usefulness of green belt as a concept – and the consultation document itself says the post-war green belt policy “must” be reviewed “to make sure it better meets the needs of present and future generations”. However, the document goes on to say the changes will not alter the extent or purpose of the green belt, while still allowing planning authorities “to face facing acute housing and development pressures to meet their needs”. The policy, which is mainly aimed at curbing unrestricted sprawl of large built-up areas, preventing towns from merging, and safeguarding the countryside and special character of historic towns, is arguably one of the most sacred policies in British politics. But, the idea of moving on from the policy has gained traction in some legal circles. Commenting on the draft NPPF on social media, Stuart Tym, partner at Knights, asked if "anyone actually still thinks green belt is a good idea anymore?" He went on to suggest that the green belt is an “unfair” policy, asking: "Why are Weston Super Mare and Coventry 'protected' from expansion and 'sprawl' but Lincoln and Peterborough are not? Hartlepool is ok to merge with Middlesbrough but Cambridge shouldn't expand? "C'mon - if we're serious about delivering housing we'd actually put the country on a level playing field - stop talking about green belt and simply introduce policies for the effective and controlled expansion of all the major towns and cities." Commenting on the idea, Nicola Gooch, partner at Irwin Mitchell, says: "It's bold. It's radical. It would be political suicide. "The green belt has a particular – wholly undeserved – but a particular place in the heart of the British public. It's one of the best-known and least-understood planning policies out there. So, I genuinely think that scrapping it entirely would be a step too far for any government. It's the planning equivalent of scrapping the NHS." While doing away with the green belt is improbable, she says reform is needed. Brown, who also agrees that reform is needed, says: "Personally. I would say you need a complete reappraisal of the whole concept. "So, for example, if one of the objectives is to prevent towns from merging, why don't we identify which towns we don't want to merge, and instead of a belt that goes around all of them, you have a strategic gap between the two." Turning back to the green belt proposals in the consultation, Brown suggests that introducing the grey belt designation is a move towards creating a "more sophisticated" green belt system and could mark a move away from the idea that a green belt means green spaces. |
How effective will reviews be in releasing green belt land?
The Government wishes to trigger more green belt reviews as part of its efforts to reach its 1.5 million homes target, but will a deluge of reviews lead to more green belt land being released?
Brown questions whether this proposed change will have the desired effect.
"As somebody who's done, I don't know how many local plan examinations either for authorities or objectors over the last 10 years, my experience has been that if you are a green belt authority with a shortfall in your housing supply in practice, you will have been looking at your green belt in any event," Brown says.
If councils have not reviewed their green belt land, they will be in for a rough ride from the Planning Inspectorate at examination, Brown adds.
"I think in a way telling people they've got to do this isn't really telling them anything that they haven't known and been doing for some time," he says.
Even where green belt land is released, and councils deliver a plan that meets its housing targets, developers must then build the homes – and questions hang over whether they will be willing or able to build out.
"Do you suddenly get loads more houses coming out of the ground simply because you release areas of land," Brown asks.
"There are a lot of people that would say that the real problem with delivery of housing in this country is not the availability of sites. That has nothing to do with it.
"It's only a small part of the problem until, for example, you help housing developers get around the problems they've got at the moment with labour shortages."
The proposed changes could also make life more difficult for developers, especially where the 'golden rule' of 50% affordable housing has to be followed.
Ricketts says often times, development is unviable because of the "cost of providing the infrastructure, the roads, the power to deliver it".
“Therefore, nowhere near 50% full housing can be provided, particularly outside of the South East."
Planning consultants at Lichfields echoed this in their initial analysis of the proposals, warning that it "is highly unlikely" that most schemes will be capable of delivering 50% affordable housing – and there are signs that the 50% affordable figure is already dissuading developers from pursuing sites on the green belt.
Just last month, it emerged that one of the country's largest housing developers, Barratts, pulled a series of planning applications due to the proposal.
Writing in a blog on 28 August, Barratt's Group Land Director, Philip Barnes, said the developer had withdrawn three "in-flight" planning applications being prepared on draft allocated sites "because the spectre of 50% renders the scheme unviable due to the unacceptably reduced (or removed) land value for the landowner".
Barnes, who said he had discussed the changes with "peers, public and private sector planners, land agents, lawyers, land promoters and landowners", also raised questions about the consultation's land value proposals.
"Everyone seems to be in full agreement – namely that the proposed disruption to the land market is likely to cause many in-flight schemes to be abandoned and stymie many other upcoming projects," he said.
"Why? Because many landowners aren't going to sell their land in such a policy environment."
He raised questions about the consultation's proposals regarding setting a national benchmark land value.
The document does not settle on specific figures but suggests introducing benchmark land values for the purposes of viability-testing local plans and planning applications.
He said: "The consultation document assumes that the existing use value of agricultural land is circa £20-25,000 per hectare or £8,000-£10,000 per acre.
"So, if we assume the Government is aiming at x10 agricultural value, they are expecting landowners to sell land for £100,000 per acre.
"Other than on larger sites, 100k will not happen in many places, and I won't spend time justifying that statement with reference to the obvious issues such as capital gains tax, revenue vs capital, and long-term perspectives."
Local plan submissions
Further questions arise over whether the Government will meet its aim of 1.5 million homes built by 2029 when it appears as though the re-introduction of mandatory housing targets and the push to release more green belt land has spooked a number of councils into expediting their developing local plans.
Last month, both Winchester City Council and Uttlesford District Council moved to advance their local plans to the Regulation 19 examination stage in order for their plans to be subject to Gove's regime – and explicitly to avoid releasing more green belt land or building more homes.
However, Ricketts has warned against councils rushing to submit.
He said he suspects that some authorities will be "looking to get their skates on" but pointed to a letter to the Planning Inspectorate in which the Housing Secretary, Mathew Pennycook, urged inspectors to be "pragmatic" in reviewing plans and to refuse to review plans which are likely to be found unsound.
"So, authorities might want to rush to get plans in place to avoid these new requirements, but they only can do that realistically if they have got their act in order and have done the necessary preparatory work and are going to be able to bring forward something that's pretty robust," he says.
"There's no point in just submitting and then hoping that you can backfill with necessary evidence base during the examination process – the Government is saying they're not going to have those situations like we had in Welwyn Hatfield where the examination goes on for years."
Brown says the trend in councils rushing to submit their plans for examination early could be problematic for the Government's 1.5m homes before the 2029 target.
He says problems will arise because the plans that are being submitted now will not have to deliver as many houses and will likely include less green belt land release – and once adopted, they will be valid for another five years before being replaced.
In addition, if a council does not get its plan through before the deadline and is therefore subject to the changes, development of the plan could still take years.
"For the councils that don't get their plans through before the new rules bite, you sort of say, well, okay, how long is it going to take to bring the plan forward," Brown notes.
"Because on any analysis, it's a one-stroke two-year process, if you're lucky.
"So you're already two-stroke-three years into the five-year period; the policies are only going to begin to bite at the end of that period, assuming you've got them in place by that stage.
"If what the government is looking at is a massive increase in housebuilding in the next five years, you can't simply rely on the local plan process to do that because it's going to take two to three years before those bold plan policies are in place," he says.
They will take hold eventually, Brown says, but changing plan-making policy is not an overnight solution for boosting house building.
