Legal landscape: New green belt guidance – short but sweet?

While for many, 22-23 July was notable for the outcome of the Conservative leadership election and the elevation of Boris Johnson to Prime Minister, for those of us in planning our eyes were drawn away from the rolling news by several publications by MCHLG which provided much needed guidance on a range of issues within the NPPF. Most notable of these, perhaps, was perhaps the guidance regarding the green belt.

It is remarkable, though, given that there was no previous guidance and how contentious development in the green belt is, that the new guidance is so short; just three paragraphs long. There are, however, some potentially interesting implications. 

The new guidance identifies a number of matters that planners should take into account when assessing the impact of a proposal on green belt openness. The guidance does not change existing considerations but states that factors such as visual impact, traffic generation, duration and remediability must be taken into account. This could pave the way for development, which would not be acceptable if permanent, to now be permitted on a temporary basis. 

Additionally, guidance is provided on the NPPF’s requirement for compensatory improvements when land is removed from the green belt. When sites have been released from the green belt, councils are required to take steps to improve the environmental quality and accessibility of the remaining green belt land; steps may include the provision of green infrastructure, woodland planting, walking and cycling routes and improvements to biodiversity.

There is a risk that if local planning authorities insist on this type of compensatory improvement it could potentially delay (as opposed to remove the block) on development, as often happens when development is approved subject to SANG provision (Suitable Alternative Natural Green Space) where development is indefinitely stalled as there is a lack of SANG.

Evidence for deliverability

The revision has consolidated guidance on housing supply and delivery, creating a brand new section which makes it a bit more user friendly. In addition to consolidation, there have been a few changes which will be of particular interest to housebuilders because of the potential to assist in arguments about the housing land supply.  

As things stand, local authorities without a five-year supply of ‘deliverable’ housing sites are open to speculative applications under the NPPF's presumption in favour of sustainable development. The new guidance ups the ante in terms of the level of evidence needed to justify that an allocated site is deliverable, and contributes to an authority’s five-year supply. 

Previous guidance stated that "any" progress being made toward either application submission or site assessment, or "any" relevant information about viability and site constraints counted as acceptable evidence. The new guidance states evidence should show "firm progress" of either application submission or site assessment and "clear relevant information about site viability, ownership constraints or infrastructure provision”. 

This may make it more difficult for local planning authorities to show that a site is part of its land supply and the information it relies on will need to be more compelling.   So, whilst there is a shift in favour of developers trying to establish that a local authority does not meet its five-year housing land supply, there’s not likely to be much change in practice. We fully expect that local authorities will argue that progress towards reserved matters, such as pre-application discussions or validation, can be used to evidence progress on schemes.

Given the juxtaposition of pressing housing need and a general reluctance on the part of planning authorities to meddle with existing boundaries, the guidance is clearly to be welcomed. However, how much it adds anything new, and therefore the extent to which it will have a definitive impact on housing delivery, very much remains to be seen.

Amanda Brodie is an associate at law firm Russell-Cooke

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