Michael Gove has published a 25 year plan to improve the environment. It is wide-ranging, comprehensive and aspirational. If delivered, and the lack of a real delivery programme is problematic, the plan aims for us to leave the environment a better place than we found it.
The plan contains three themes that might lead to a profound change in planning. The first is a principle that development should have a net environmental gain. On a project by project basis this could mean a development having a natural capital account setting off the environmental costs against a compensating balance for either on-site or off-site benefits. If so there will need to be a proliferation of environmental land banks and habitat improvement schemes that development can use to ensure a net gain.
The second theme involves looking at how to improve the environment. Much of the plan focuses on managing, maintaining and enhancing the natural environment. It is clear that we should be seeking opportunities to remedy past mistakes. It might be worth thinking about how this could change attitudes to, for example, brownfield sites. It might lead to a move away from the lazy assumption that brownfield sites in the countryside can simply be replaced by less ugly development. It might, instead, just mean saying “no” to the replacement of development that would never be permitted nowadays and a focus on sites that, although green, can make a better contribution to sustainable growth if carefully planned, designed and developed.
The final theme relates to the Green Belt. The language of the plan talks about making these areas more accessible, almost envisioning them as country parks. That has never been a Green Belt purpose. With changes due to the NPPF it might, however, become a future factor when changing Green Belt boundaries or when designating new Green Belts. Tying back to the first theme it might lead on to a scheme where, in exchange for planning permission, new development has to secure rights of access to Green Belt land as part of the environmental benefit offer. And where that increase in accessibility is itself part of the balance to be struck in release of other Green Belt land.
If the plan follows through on these themes it could reshape the foundations of the planning system.
In R (Lensbury Ltd) v Richmond-Upon-Thames London Borough Council  EWCA Civ 814 the Court of Appeal disagreed with the High Court and agreed to quash permission for a hydro-power installation at a weir on Metropolitan Open Land (MOL). The appellant hotel owner succeeded on the grounds that the authority had, in applying its own policies on MOL development, failed to apply the stricter London Plan policies.
London Green Belt
The London Plan gives MOL equivalent status to green belt (applying NPPF policies – i.e. inappropriate development should not be allowed unless there are ‘very special circumstances’ (VSC)). The local plan policies allowed the development to be classified as ‘appropriate development’ in a way that the London Plan policy did not. The authority considered only the local policies.
Failing to refer to the specific (London Plan) policy in the committee report which provided the rationale for the decision was not fatal when considering the extent of compliance with the development as a whole (under Section 38(6) Planning & Compulsory Purchase Act 2004). The analysis did, however, have to make clear that “a particular policy has been brought into account“.
VSC need to be clear
By failing to identify the development as inappropriate in the context of London Plan MOL policy, the authority had failed to ask whether VSC existed which justified the exceptional grant of planning permission. The S.38(6) duty – to determine in accordance with the development plan as a whole, or identify reasons for a different approach – had therefore not been discharged.
The judgment is a reminder that the Courts are pragmatic on the application of S.38(6). The duty does not require a mechanistic treatment of each policy (City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447). An overall finding of “compliance or conflict” with the development plan as a whole is sufficient, whether express or implicit.
The judgment notes that the dilution of the London Plan approach by the local plan policy appeared to have been overlooked. One oddity of the case is that agreement between the parties that the two policies did not take precedence over each other does not appear to reflect S.38(4), which provides that where there is conflict the most recently adopted policy trumps the older one.
The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner. The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use. The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including ‘meanwhile’ uses of buildings.
Backdoor village green?
Bedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents’ association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014. Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating “private land no unauthorised access”). The Council decided to maintain the listing in September 2014. Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.
Banner were then granted permission to appeal to the Upper Tribunal on two grounds:
- whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
- whether there was a reasonable prospect of a community use in the next five years (Ground 2).
Unlawful community uses
Banner argued that use of land without permission could not meet the test for listing as an ACV. Rejecting that, the Upper Tribunal pointed to:
- the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
- the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some “inbuilt protection” from a public policy perspective; and
- the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.
More than fanciful
On Ground 2, the Upper Tribunal rejected the argument that the ‘realistic reuse’ test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future. Noting Banner Homes’ insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and “is not a matter for veto by the landowner”.
The First Tier Tribunal’s decision – that it was “not fanciful” that a community use could re-start if Banner had a change of heart – was upheld. Banner’s difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.
Government guidance recognises that LPAs may treat ACV status as a material consideration. The Upper Tribunal judgment suggests that “as a matter of planning policy any necessary permission is likely to be refused while land is listed”. That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.
The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites. While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.
This case will be of concern to owners of similar development sites. While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.
The Green Belt is back in the news. DCLG has updated the NPPG, and included responses to two further questions that “interpret” the Green Belt policy in the NPPF. In substance, neither additional paragraph makes any real contribution to our understanding of the policy in the NPPF.
However, the Ministerial statements that introduce the additions to the NPPG have given the impression that Green Belt policy has been tightened and that greater favour is now being given to brownfield land. That is wrong. There is no change of policy. Ministers should stop pretending that that is the case.
In any event, as the Court of Appeal has just found the Green Belt is already well protected. In the Redhill case Lord Justice Sullivan responded to a suggestion that Green Belt policy had changed in the NPPF by saying:
“… far from there being an indication that placing the presumption in favour of sustainable development at the heart of the framework is intended to effect a change in Green Belt policy, there is a clear statement to the contrary.”
This was in the context of batting away, and overturning, an odd High Court decision. Redhill aerodrome is a potential development site in the Green Belt. An inspector had concluded that the proposed development would harm the Green Belt, would cause other harm, and that that was not outweighed by the acknowledged benefits of development. In the High Court, the Judge was asked to interpret paragraph 88 of the NPPF which sets the policy on the very special circumstances that need to be demonstrated to justify development in the Green Belt. Paragraph 88 says:
“Very special circumstances will not exist unless potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”
In the High Court, the phrase “and any other harm” was said to relate only to other Green Belt harms and that non Green Belt harms should be ignored. The Court of Appeal firmly rejected this notion, saying that it would be an unfair balance. The Court held that the proper test was whether the harm to the Green Belt together with any non Green Belt harms were clearly outweighed by the benefits of the development.
That approach is, self evidently, correct. It also gives confidence that when faced with applications the Green Belt will continue to be protected where it deserves to be and where the harm is not clearly outweighed by benefits. In the same way, the Green Belt is also protected in the local plan process by a proper interpretation of the NPPF. DCLG should have confidence in the NPPF as written, rather than seeking to reinterpret it by way of Ministerial statements.
The best way to secure the Green Belt is ultimately to plan in a way that clearly meets needs, accepting the exception cases when land will need to be released and creating new long term boundaries that will shape the patterns of cities for the next 30/50 years – pretty much the approach advocated today by the Centre for Cities.