The London Green Belt Council Notes: Issue 134 March 2003

Sale of Green Belt Fields in Strips

I referred to the above practice at last year’s AGM. It is a matter which all members should take very seriously. A company engaging in this business buys a field, divides it into plots varying from perhaps 0.1 to 0.5 acre each, and sells them for many times their agricultural land value, using some such words as ‘excellent freehold investment opportunities’. The purchasers are told that planning permission will be needed for development, but not told that such permission will be extremely unlikely. The implication is that they will be holding an extremely valuable site in years to come. The fields may have the individual plots marked out by stakes from 2ft. to 6ft. high.

The sites are mostly in green belt. We know of four companies engaged in this business, and of examples of it in at least eight counties (six of them green belt counties) and two London Boroughs. In one case in Hertfordshire the area has been divided into nearly 200 plots, of which about two thirds are marked out on the ground - see below as to why the other third are not. The plots are then left. It is early days yet, but they will soon become unkempt and unsightly (they are unsightly enough by virtue of the stakes alone), and may be subject to tipping and so on. And then, guess what, the developers and building interests will start saying that they would be better built upon.

The Local Authorities are as concerned as anyone about this ploy because they feel themselves almost powerless. They can prevent the erection of the stakes if they can get an order placed on the sites before the stakes are erected. The order is made under the Town and Country Planning (General Permitted Development) Order, 1995, and its effect is to withdraw the permission which one normally has to carry out works like fencing, sheds, etc., within the curtilage of one’s dwelling house. But such orders are not retrospective, i.e. they cannot order the removal of what is already there when the order is made. That is why, in the case referred to above, two thirds of a very big site in Hertfordshire are staked and one third (in a different field) is not. It depends on whether the local authority know of the of the sale in time and, if they do, whether they take action in time.

But it appears that there may be another route that local authorities could take, at least in the majority of cases, In a very helpful letter of 18th Dec. 2002, Lord Rooker, Minister of State in the Deputy Prime Minister’s Office, writing to Oliver Heald, MP for north-east Herts, after explaining the uses and limitations of Article 4 Orders, went on:

Lord Rooker cannot give direct advice on particular cases because he has to preserve the Deputy Prime Minister’s position in case of any appeal, but the letter is clearly intended to be as helpful as possible and it seems to me that all our members should be prepared to bring the letter to their own local authority’s attention as soon as possible. The course suggested may well require an authority to risk an expensive appeal against the course it is taking, but this is going to be a Home-Counties-wide problem unless it is stopped, so could not neighbouring threatened authorities pool resources to fight a test case?

This is a commercial ploy to trade on the gullibility or ignorance of purchasers, not part of any Government desire to weaken green belt. But it does mean that all our members should be alert and prompt to act. Knowledge of the ploy is spreading: I have been contacted by one national newspaper, various local papers round the green belt, and by BBC radio, as have others who have been involved. Other solutions to the problem may emerge in time. For instance, one London Borough has suggested that local authorities should be given compulsory purchase powers to act in particular cases, but I cannot see that as feasible where large tracts of countryside are concerned. Other people have suggested that the sale of agricultural land should be prohibited in circumstances to be defined, but I do not think that would be acceptable in principle to any Government. Indeed, in a reply to a PQ from our President about the sale of plots, Tony McNulty, another Minister in the Deputy Prime Minister’s Office, after reaffirming the Government’s ‘commitment to the protection and enhancement of the green belt’, added ‘However, it is not generally the role of the planning system to place control on land ownership’.

Affordable Housing ‘within or adjoining’ green belt villages

In his report on the South Beds District Plan, the inspector who conducted the inquiry made a comment which is interesting and useful. To explain why, let me go back a bit.

The original PPG2 of 1988 said nothing about affordable housing but by the early 1990s, when PPG3 on housing was in preparation, there was pressure to allow development for that purpose ‘in or adjoining’ villages. But when it was issued in 1992, PPG3 made clear that, so far as green belt was concerned, the advice applied within villages, not ‘within or adjoining’. And when the current PPG2 came out in 1995 it included an excerpt from 1992’s PPG3 stressing that the advice about affordable housing did not override PPG2 as regards green belts. We were successful on a number of occasions in getting the words ‘or adjoining’ removed from local plans which proposed to use them in the green belt context. But when PPG3 was itself revised the words appeared again in the consultation draft in a slightly ambiguous context from which planning officers could infer that affordable housing adjoining green belt villages was now all right. We tried to get the words removed from the draft, but failed, so that PPG3, as re-issued in March 2000, says that rural affordable housing provisions may be augmented by an exception policy which ‘enables local planning authorities to grant planning permission for land within or adjoining existing villages which would not normally be released for housing, in order to provide affordable housing to meet local needs in perpetuity’ (para 18). Annex 2 gives more detail, including (para 2) ‘An exception policy enables the authority to grant planning permission for small sites, within and adjoining existing villages, which may he subject to policies of restraint, such as green belt, and which the local plan would not otherwise release for housing....’. So the way was opened to such development and we feared that many districts would jump at the opportunity,

I now come back to the South Beds District plan. The 1995 version provided for affordable housing only within green belt villages. In the 1998 draft the words ‘or adjoining’ appeared and we objected on the grounds that, though the draft new PPG3 then in circulation contained those words, the issue was not yet decided. South Beds Council agreed and proposed a pre-inquiry change omitting the words ‘or adjoining’. The inspector said that the Council was not obliged to omit the words but neither, in view of the wording of PPG3, was it obliged to include them. If it thought it was the right policy for the plan to exclude development adjoining green belt villages, it was entitled to reach that conclusion.

So the plan goes forward without ‘or adjoining’. I set this out at length so that members who may want to quote the case can have enough background. They can at least dispute the issue with any council which tries to argue that in view of the current PPG3 it must include the words ‘or adjoining’ green belt villages.

Is Green Belt an Environmental Asset ?

Essex County Council have recently circulated for consultation various documents relating to the early stages of preparation of the Essex and Southend-on-Sea replacement structure plan. They include a technical report prepared by the authorities’ own officers and a Sustainability Appraisal Report prepared by consultants Baker Associates and Enderby Associates. The idea is that the consultants’ outlook will be fed into the authorities’ pool of knowledge and ideas at each stage of the preparation of the main documents. However, the technical report says), ‘these studies....do not necessarily reflect the views of the Joint Structure Plan Authorities’.

I would hope not. Para 3.46 of the Baker and Enderby report says:

Thereafter the document, though not completely ignoring green belt, mentions it as a sort of nuisance that it is for others to bother about.

The term environmental asset is almost as vague as sustainable development, but it seems to me extraordinary that consultants should pursue such a blinkered view of what ordinary people regard as assets to their home location, or should equate such assets with scenic or wildlife quality but not with openness for its own sake. It makes me wonder whether the councils should go on retaining such consultants.

The consultants have, however, attempted to explain the concept of sustainable development. ‘Integral to the concept’, they explain, ‘is the principle of intergenerational equity, that is, that the degree of access to the world’s resources should be no less in the future than it is for the present population. Implicit, too, in the idea of sustainable development is a concern for intragenerational equity, that is, that the consumption of resources by some should not deny the needs of others.

Fortunately, whatever the frothings of the consultants, the local authorities’ technical report seems to have its feet more firmly on the ground. Part of its section on Government green belt policy reads:

By the time Essex members get these notes it may be past the deadline of 31st March for comments to the councils. But these are only the early stages of preparation of the plan and I am sure that you will make your views known in no uncertain terms (or should I say in a intragenerational non-incomprehensible characterisation) in due course.

Select Committee on DEFRA

Notes 131 included the paper which we had submitted to the Parliamentary Select Committee on DEFRA (the Dept. for the Environment, Food, and Rural Affairs), and the minutes of our last meeting included a note on the Committee’s report. The Government published its own reply to the Committee’s report on 22nd January. To summarise the position from our point of view — (1) We said that splitting Departmental responsibility for planning from that for rural affairs was a mistake; (2) green belt is a policy which spans urban and rural affairs so, given that the split in (1) has occurred, DEFRA must have a real influence over planning policy generally; (3) the Select Committee thought that there was nothing inherently wrong in splitting planning policy and rural affairs so long as DEFRA ensures that it is listened to, but (4) to achieve that DEFRA needs a significant change of culture, which ‘has hardly begun’.

Not surprisingly DEFRA defends itself against these criticisms. The defence is long and wordy, and methinks the Department doth protest too much. However, it has been put on notice that the Select Committee will want regular reports of progress, and that is all to the good.

Planning Decisions

1. Attempts by gypsies to advance human rights arguments in aid of their being allowed to settle on green belt (and other land) are legion but by no means always successful. Examples have been given in Notes 131, 130 and in particular a European Court ruling summarised in issue 126 and minute 333(2). In essence the Court held that, though planning decisions and enforcement interfered with certain rights, the interference was justified because the measures were in accordance with a law which pursued the legitimate aim of protecting the rights of others through the preservation of the environment. But attempts go on. Four caravans of gypsies occupied land in Bristol green belt, created hard standing on a former paddock, and erected a portable toilet. The Council started enforcement action and there was an appeal. The gypsies claimed that the Council had not provided enough official sites; that human rights legislation meant that a greater level of harm to the countryside and the openness of the green belt was now required before planning permission could be refused or action taken to evict them; and that any such action had to be proportionate to the harm caused.

In his report to the Secretary of State the inspector said that lack of available sites did not constitute very special circumstances as this could lead to a cumulative increase to gypsy sites in green belt. None of the personal circumstances adduced outweighed the harm to the openness of the area and, whilst taking account of the human rights issues, he upheld the enforcement notice was necessary in the public interest. That would be proportionate action, and no human rights would be violated. The S/S agreed, ordered the removal of the hardstanding, and dismissed the planning application for the retention of the caravans.

2. A similar argument was used in Epping Forest District when gypsies appealed against a local authority temporary injunction preventing their settling on a green belt site. They argued that the breach of their human rights would be disproportionate to the harm caused; and that the injunction would adversely affect their children’s education and the provision of medical treatment. The High Court rejected these arguments and granted the local authority’s injunction. There was an appeal to the Court of Appeal, which upheld the High Court’s view, holding that, as the gypsies accepted that they had no right to remain on the land, no violation of their human rights had occurred.

3. Proposals for two sports pavilions, hockey and rugby pitches and car parking Merchant Tailors' school, Middlesex, were refused because the facilities were too ambitious. One pavilion measured 580 sq.m. and included a bar and dining room for 92 people; the other involved a 465 sq.m. pavilion in two storeys. One social area could accommodate 100 people in comfort and up to 250 for special events. This, said the inspector, could not be regarded as necessary to facilitate outdoor sport.

4. Plans for a car park in a large field next to Hildenborough Station, Kent, were rejected on appeal on green belt grounds and because the development, including the lighting, would unacceptably harm the rural character of the area.