The London Green Belt Council - Notes: Issue 122. October 2000
Mayor of London's Planning Powers
The Mayor's PIanning powers have come into force. The relevant Statutory Instrument is The Town & Country Planning (Mayor of London) Order, 2000. (SI 2000 No. 1493), and the S/S's first guidance under it is Circular No. 1/2000 of the Government Office for London. Here is a note about the Order.
Summarising the Order necessarily risks pitfalls. It appears to mean that
The position is thus broadly the same as it was in the days of the GLC, which was a notable defender of green belt against the wishes of certain London Boroughs. The key question, of course, is what are matters of potential strategic importance.
The Order specifies 14 categories of development that must be reported. These comprise over 40 sub-categories defined by reference to numbers of buildings. areas, heights in different contexts,, implications for infrastructure., etc. So far as green belt is concerned 'development which may affect strategic policies' includes:
'Category 3D: Development -
(a) on land allocated as Green Belt or Metropolitan Open Space in the development plan, in proposals for such a plan, or in proposals for the alteration or replacement of such a plan; and
(b) which would involve the construction of a building with a floor space of more than 1000 square metres or of a material change in the use of such a building'.
The weakness of this seems to lie in the words 'a building' rather than 'a building or buildings'. This seems to provide a loophole for London authorities to treat a number of small buildings in green belt as matters not needing reference to the Mayor. If this, or the operation of the Order in other ways, seems liable to create problems we must be ready to try to involve the Mayor's office.
A little while ago I approached Darren Johnson, leader of the Green group in the London Assembly, and the Mayor's advisor on Environmental matters; and he has replied that he would be 'delighted to receive from the London Green Belt Council information about any major planning applications that you have concerns about in order that I can raise these with the Mayor'. We have also put Mr. Johnson on the distribution list for these Notes. The Librarian of the Government Office for London has also asked for them.
The Circular must be obtained from HMSO, price £13.50. (ISBN 0 11 753550 8).
Regional Planning Guidance PPG11(Oct. 2000)
This new PPG replaces the advice on regional planning given in the 1992 version of PPG12 (NB: the December 1999 version of PPG12, on Development Plans, did not stray into regional planning guidance and is unchanged).
Notes 114 (March 1999) contain our comments on the draft PPG11. The final version is an improvement and is quite an impressive document, given that it covers a wide range of very broad issues. They are supposed to be resolved by the harmonious interaction of a wonderful assortment of practically-orientated, visionary, self-sustaining planning, management, and business fora, - regional planning bodies, development agencies, chambers, and Government offices, to be known by the initiated as RPBs, RDAs, RCs, and G0s.
Experience will show whether it works. Points to note now are:
1) PPG11 now says clearly (the draft left it in the air) that the past arrangement whereby Beds, Essex and Herts were in the south east region for regional planning purposes and in the eastern region for other purposes will end next April. They will then be in eastern region for all purposes.
2) The statement in the draft that regional planning guidance should 'consider regional or sub-regional green belt issues including setting criteria consistent with national policy for any review of green belt boundaries in the region' has been retained. We had objected that there was no case for encouraging regional variations. The final version does, however, expand the reference to green belt, so that the emphasis is more on requiring justification for change than implying that regions should invent their own policies. Paragraph 9.07 says
.... RPG should make clear whether its spatial development strategy has implications for green belt boundaries, taking account of the guidance in PPG2. That PPG makes clear that the essential characteristic of green belts is their permanence. Once the general extent of green belt has been approved. it should be altered only in exceptional circumstances, after opportunities for development within the urban areas contained by and beyond the green belt have been thoroughly considered. In considering any changes to green belt boundaries the regional planning body should ensure that the purposes and land-use objectives for including land in the green belt, as set out in PPG2, are respected'. After giving guidance on what should be done if the regional planning study concludes that changes seem necessary, It goes on 'However, where RPG does not identify the need for development on land within the green belt, development plans should contain proposals for any significant change to green belt boundaries only exceptionally, and set out clearly the reasons for doing so'. This appears to be an attempt to reduce the scope for machinations at county and district levels.
3) There is nothing in PPG11 that supports those who would like green belt to be protected on the basis of scenic quality.
4) There is no specific reference to major sports facilities in green belt. But paragraph 8.7 says that regional guidance should encourage their location, where possible, in urban areas well served by public transport.
The Royal Town Planning Institute and the Green Belt
The RTPI has circulated a discussion paper on green belt policy. It contains the protestations, usual among those who want to undermine green belts, of fervent support for the broad policy provided that it can be relaxed (probably for the last time) so that in effect it would become something different and much weaker. The general shoddiness of the thinking is illustrated by comparing paragraphs 19 and 21. The former says that 'devices such as green wedges' should be abandoned. The latter says that green wedges may be as effective as green belts in separating settlements, etc. Another paragraph says that green belts 'often adjoin open countryside', as though the green belt and the countryside are different commodities, and as though the authors haven't grasped that very much green belt is open countryside.
A few, other quotations convey the general line (my underlining).
- 'A problem area is the quest to achieve a continuous belt. Green wedges might better provide for separation -- Containment. where these are important, and at the same time allow more land to be developed": '
'Situations arise where land in green belts may be of little or no economic value. In turn this leads to progressive degradation of green belt landscape in just the situations where amenity demands are highest'. This assumes that landscape quality is the criterion and that smartening up as part of a planning scheme (which no doubt includes built development, is desirable. This is a total distortion of what green belts are for.
'…. the public can be given confidence that its much-loved concept is here to stay, in a modified but more robust form, as an Important tool of urban planning policy'. Apart from the fact that 'modified but more robust' means 'weaken it then pause until we are ready for a further attack', green belt is there to protect- both urban and rural policies and to prevent the alleged needs of development from tainting both.
The paper reflects no credit on the RTFI. The danger is that Ministers might give it more attention than it is worth. To be fair to Ministers of all parties, they have shown little sign of falling for such stuff in the past, because they know very well what public reaction would be. We shall make our views very clear in all the appropriate places.
Green Belt (London and Home Counties) Act 1938 v. Right To Buy (RTB).
This takes me back over 10 years. To summarise the position, when the GLC was abolished the then S/S for the Environment said that land subject to the 1938 Act would be treated as inalienable. Subsequently various tenants of properties protected by the Act sought the right to buy them under the RTB provisions of the 1985 Housing Act. The DOE tried to pretend that the latter Act overrode those provisions of the former one that were repugnant to it. The London Borough of Enfield, to its great credit, took the matter to the High Court, which said that the DOE was talking nonsense. In giving judgement Mr. Justice McNeill said 'It seems to me entirely right and consistent with the intentions of Parliament that where, the RTB exists in respect of green belt land, the S/S should continue to have the power to consent or withhold his consent to the sale, applying to his decision what might be described as green belt or more broadly 'planning' considerations. There is to my mind no repugnance between the two provisions, each can work in harness with the other'. But the S/S continued always to consent to the sale of 1938 Act land where RTB was involved.
Now we come up to date. In a High Court decision dated 24th May. 2000, Mr. Justice Goldring considered an application by a lady who was a tenant of Croydon Council, occupying a flat at Coomb Wood Park, a mostly wooded park protected under the 1938 Act. She sought a declaration that that Act could not, deprive her of her right to buy under the 1985 Housing Act. Counsel for the applicant argued in the High Court that the S/S could consider the relevance of the 1938 Act only in the context of industrial or building development. He reached this conclusion by quoting from the long title of the 1938 Act - 'An Act to make provision for the preservation from industrial or building or building development....'
The case had reached the High Court because Croydon Council had notified the SIS (as it was obliged to do under the 1938 Act) that it opposed the sale of the property. The S/S had held an inquiry and decided to support the Council and refuse consent to the sale. In his judgement Mr. Justice Goldring reviews the legislative provisions, and confirms that the only legal authority by precedent is the Enfield case quoted above.
His Lordship would have none of the argument based on the long title of the 1938 Act. He declared that the fact was that Parliament, in passing the 1985 Act, did not repeal s5 of the 1938 Act. That must be assumed to have been deliberate. Therefore, before 1938 Act land could be sold, the S/S must 'consent.
He had the discretion and must exercise it. The Discretion cannot have been intended by Parliament to be so limited as the applicant claimed: - "It cannot have been intended he ignore such things as the location of the property in question, its nature, how the particular sale will affect the particular piece of green belt land, and so on .... The S/S is entitled to take into account green belt or more broadly planning considerations. It must have been Parliament's intention that the S/S carry out a balancing exercise between the right to buy under the 1985 Act and s5 of the 1985 Act". (sic - 1938 must have been intended).
The decision will encourage Councils to seek a more robust use of the 1938 Act in appropriate circumstances. Members should be aware of the possibilities. It is also nice to know that we were right all the time.
Green Belt v. Human Rights
An application was made to increase permission from 10 to 20 gypsy caravans on a site in Runnymede. It was refused by the Council, partly on green belt grounds and partly because they did not think that extra need had been demonstrated at that site, though there had been extra unauthorised use of it for years. The inspector found that the size of the site would not be changed, nor its prominence, in its setting. But the rights of some of the 'unauthorised' residents who had established local links would be breached by enforced removal. These considerations would bring the proposal within national policy and create very special circumstances sufficient to allow the appeal. The S/S disagreed with the inspector that a gypsy site could become appropriate in green belt, but he agreed otherwise, and allowed the appeal.
Farm Diversification
Diversification of farm incomes can have some unusual results. In giving talks about the green belt I have long used a slide at Colesdale Farm near Cuffley, about three miles from my home, to show how attractive and unspoilt rural Hertfordshire green belt near London can be.
But I took another picture recently to show a prison on the site built for the recent Channel 5 TV series 'JaiIbreak'. One problem the TV producers had not anticipated. Once the location of the prison was known, the problem was not preventing the inmates from breaking out (which was what the programme was about), but to prevent late-night revellers from nearby Cuffley from breaking in. The site has now been cleared.