Rethink ‘golden rules’ for green belt development, UK government urged

The new Labour government in the UK opened a consultation in July on proposed changes to the National Planning Policy Framework (NPPF), which is the framework that local planning authorities must refer to when setting planning policy, and making planning decisions, at a local level in England.  The consultation closed on 24 September.

Read more from Pinsent Masons on the NPPF proposals

• Housing delivery risk ‘unless NPPF green belt plans clarified’

The government wants to encourage a ‘brownfield first’ approach to development across England, but its proposals recognise that some development will need to happen on other land too if its objectives of ramping up housing delivery and addressing other infrastructure needs are to be met.

In this regard, the government wants local planning authorities to undertake a review of green belt land in their area and release what it describes as “low quality grey belt land” for development to meet local needs. This “strategic” approach will avoid the sort of “haphazard” release of green belt land that the government considers happens under the current framework.

However, the government has proposed to put conditions on the development of land released from the green belt, with a view to ensuring that such development “benefits both communities and nature”. The government has referred to these conditions as ‘golden rules’, which are envisaged to apply to green belt released through local plans produced by local planning authorities or via individual planning decisions. Three golden rules are envisaged.

Under the first golden rule, developers proposing new housing schemes for green belt land would need to make provision for at least 50% affordable housing within those projects, with an appropriate proportion being social rent housing, subject to viability.

The second golden rule would require prospective developers of released green belt land – whether for housing schemes or other types of development – to make “necessary improvements to local or national infrastructure, including delivery of new schools, GP surgeries, transport links, care homes and nursery places”, as determined by local leaders.

The third golden rule would require developers to provide new, or improve existing, local green spaces that are accessible to the public. In the context of housing developments, the proposed expectation is that “new residents should be able to access good quality green spaces within a short walk of their homes, whether through onsite provision or through access to offsite facilities”.

In its response to the government's consultation, Pinsent Masons called on the government to reconsider subjecting land released for development through the local plan process to the golden rules, Pinsent Masons said it does not think it is “appropriate for the … golden rules to apply to sites that have been promoted and allocated through the local plan process”.

Pinsent Masons said local planning authorities should be able to determine what the appropriate policy requirements should be for release of a site. It highlighted that such decisions are subject to scrutiny from planning inspectors under the current local plan process, including testing of the viability of the policy proposals.

By maintaining the current approach, local planning authorities would have flexibility to support developers in investing in delivering meaningful infrastructure improvements alongside new housing – plans which could need to be curtailed if they were required to meet an arbitrary 50% affordable housing requirement, according to Pinsent Masons.

In its consultation response, Pinsent Masons also said that plans to impose a blanket 50% affordable housing requirement for housing development on released green belt land does not reflect “different land values and costs across the country” and “does not allow for the different viability challenges that particularly apply to developments outside of the South East of England”.

Pinsent Masons drew on Greater Manchester as an example, where the key part of the case for releasing green belt sites was attracting and retaining more economically active households by the provision of family and larger, high value homes which was part of the recently adopted local plan’s strategy of achieving inclusive growth.

In the event the government decides to follow through on its plans to apply the golden rules to released green belt land allocated within local plans, Pinsent Masons has urged it to consider alternative wording to the first golden rule, to make requirements around affordable housing delivery more flexible: “In the case of schemes involving the provision of housing, local planning authorities will target a higher percentage of affordable housing on green belt sites than non-green belt sites, the percentage and tenure of which will be subject to viability,” it suggested.

The government’s planned stipulation around 50% affordable housing under the first golden rule is subject to the proposed development in question being viable. Currently, there is some flexibility within the planning regime to allow affordable housing requirements to be negotiated between local planning authorities and developers within a viability assessment process. In its consultation, however, the government outlined plans to severely limit the scope for negotiations over viability.

One option the government is exploring in this regard includes it setting “indicative benchmark land values for land released from the green belt through national policy, to inform the policies developed on benchmark land value by local planning authorities”. Under a further option, there would be an assumption built into the NPPF that a 50% affordable housing requirement is viable where the underlying green belt land on which development is proposed transacts at a price above the benchmark land value (BLV).

Pinsent Masons said, however, that it would not be “sensible” for the government to set national benchmark land values “given the high variability in land values across England”. Such a policy, it said, could dissuade land owners in the south of England from bringing their green belt land to market, if the BLV is set too low, or risking significantly reduced affordable housing delivery in the Midlands and north of England, if the BLV is set too high.

“BLV should be set at a local level in order to account for different market conditions,” Pinsent Masons said. It said there is support for this view in a 2012 report into viability testing of local plans by a group chaired by Sir John Harman, as well as in current planning practice guidance, which accompanies the NPPF.

“We consider that there should be no reduction in scope of viability negotiations and that the existing viability assessment process is sufficiently robust and well-trodden to address the position,” Pinsent Masons said, adding that the government would have to put in place “transitional arrangements” in the event it did implement its proposals – including to account for cases where contracts have already been negotiated at BLV above whatever is considered to be the local-set or nationally-set BLV.