Is ‘housing need’ becoming the political force to shift a move to allow developments in the Green Belt?

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By Martha Grekos, Director and Barrister, Martha Grekos Legal Consultancy Limited

The retention of the Green Belt continues to be a huge issue for councils and communities across the country, as it is an issue that councillors face regularly on the doorsteps of their electorate. Combine that with the UK crisis of housing supply and a call to release some of the green belt for developments, and you have a political hotbed.

Technically, there is an easy solution to the UK crisis of housing supply: find more land for housing. This is not a physical problem but a political one. The land is there but policies and habits of thought prevent its use, while incentives are counter-productive.

The National Planning Policy Framework (NPPF) has been revised but continues the Government’s reluctance to allow development in the Green Belt. Paragraph 143 of the NPPF states that: “Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”

Furthermore, the NPPF at paragraph 144 goes on to state that “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.”

The significance of this is that there is not an exhaustive list available to local planning authorities, or other decision-makers, to offer them definitive guidance as to what may amount to ‘very special circumstances’. Ultimately, decisions are based on whether the decision maker believes the very special circumstances of the application before them outweigh the detrimental impact on the Green Belt.
Recent case-law has demonstrated that ‘housing need’ is becoming the political force to allow developments in the Green Belt. The most recent decision is the recovered appeal by the Secretary of State in relation to the appeal against the decision of South Oxfordshire District Council to refuse Oxford Brookes University’s application for outline planning permission for 500 homes in the Green Belt (see application ref: P17/S4254 and APP/Q3115/W/19/3230827).

On 23rd April 2020, the Secretary of State allowed the appeal and granted permission following the recommendation of his Inspector. The Secretary of State cited the area’s “acute” affordable housing need among the “very special circumstances” required to justify the scheme.

Looking as his conclusions, the Secretary of State found that a large portion of the site comprised previously developed land and 14% that was outside this area did not comprise previous developed land and therefore its development would require very special circumstances. In assessing the impact on Green Belt openness, the Secretary of State identified that the removal of the tower and other large unsightly structures would amount to a very substantial benefit. The Secretary of State then went on to state that the redevelopment of the site would lead to significant heritage benefits which would result in no overall heritage harm, including the removal of the stark backdrop of the campus buildings and the removal of the tower in views from a listed church. The package of transport measures would also provide significant benefits. And lastly, housing was accorded very substantial weight. Even though the council was able to demonstrate a 5 year supply of housing land, the Secretary of State agreed that the proposed development would contribute significantly towards the Council’s affordable housing shortfall. Given the seriousness of the affordable housing shortage in South Oxfordshire, described as “acute” by the Council, he agreed with the Inspector that the delivery of up to 500 houses, 173 of which would be affordable, are considerations that carry very substantial weight. The economic benefits of the scheme would also carry very substantial weight. All these considerations would outweigh the ‘definitional harm’ to the Green Belt by virtue of inappropriateness identified in this case. The Secretary of State therefore concluded that very special circumstances exist, which would justify development in the Green Belt.

A single development proposal may have a number of very special circumstances, which are all to be considered cumulatively. Therefore, a single proposal may have many circumstances which, when considered in isolation, would not warrant development in the Green Belt but, together, might well do. This seems to be how case-law is developing, with housing tipping the scales in favour of justifying development in the Green Belt if the other circumstances also have very substantial weight.

This can be seen in the appeal case decision on 14th May 2020 whereby the Secretary of State rejected 516 houses in the Green Belt outside a Yorkshire city after weighing up environmental impacts against a critical need for new housing in a recovered appeal decision. This appeal seems to have caught the media’s attention as David Attenborough objected to this scheme.

The development site encompassed 40 hectares of farmland and pasture abutting the urban edge. Elsewhere the site shared a watercourse boundary with an adjacent bog SSSI, having the visual appearance of woodland and designated as Ancient Woodland and containing irreplaceable fenland habitat. A main issue concerned the effects of bringing development close to this delicate habitat, particularly on its water supply. The Secretary of State agreed with the Inspector that proposed attenuation ponds would greatly reduce the supply of nutrients to the watercourse and therefore the bog. He also recognised the potential for damage through unauthorised access. In the absence of a development plan or a five-year supply of housing land, the Secretary of State applied the tilted balance in favour of the development to his decision. However, he held that the probable adverse effects on an SSSI and deterioration of irreplaceable habitat was contrary to NPPF policy. He considered that the notable housing and other benefits of the scheme did not clearly outweigh its likely impact on these nationally protected assets, and the wholly exceptional circumstances required by the NPPF to justify deterioration of irreplaceable habitat had not been shown and the development should be refused. The combined harms were not clearly outweighed by the benefits of the scheme, which encompassed housing and above-policy requirement provision of affordable housing, biodiversity gain and open space, as well as community facilities and a clear urban edge.

Green Belt development continues to be case and fact-specific and each proposal will be judged on its own merit. However, the Secretary of State is considering housing need as an issue of ‘very special circumstances’ to justify Green Belt development.

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