The
October
2003
Mary Holt
Members will be saddened to learn of the death on August 1st of Mary, the wife of our Secretary, Laurie Holt. She attended all our meetings with him, and took a great interest in our affairs. She will be sadly missed, and we offer our sincerest sympathy.
Delayed Issue of these Notes
These Notes come out after the longest gap we have had between issues. There has been no special reason for this, just a combination of smaller ones. It is certainly not the case that nothing has been happening as regards green belt, but in what is perhaps the biggest current issue, the sale of field strips as ‘investment’, we were awaiting the Counsel's opinion which we had commissioned on legal aspects of the problem, and an issue of Notes did not seem to be needed in the meantime. At the same time, Government Departments were showering us with consultation papers on various matters, with timetables for comment which were sometimes too short for us to consult our members, and sometimes not. This issue of Notes is therefore partly a catching-up exercise and partly on current matters.
See Notes 134 and Minutes 347(4). The text of Mr. Barry Denyer-Green’s opinion is enclosed. It seems to me a lucid and comprehensive review of the problem. His opinion is:
‘(a) the existing regulatory legislation is unsatisfactory to prevent the consequences of the sale and divisions of agricultural and other similar land into small ‘leisure’ plots within the London Green Belt;
‘(b) local planning authorities do have adequate powers to acquire land by agreement or compulsorily to meet the problem, set out above where they have both the political will and appropriate funding.’
He gives detailed reasons and adds some interesting suggestions. Nothing in this subject is very easy, and at our next meeting we must begin to work out ways of pressuring authorities at both national and local levels to bring about change.
I have sent copies of the Opinion to all the MPs and representatives of local authorities and other organisations who attended Mr. Oliver Heald’s meeting in the House of Commons, in which my wife and I took part, on 6th May.
PPG ÷ 2 = PPS+ PPG
The
formula above indicates that the Government, having concluded that PPGs contain too much detail, has decided to issue as
separate documents Planning Policy Statements (PPS), which will make
Government’s broad policy objectives clear, and Planning Policy Guidance (PPG)
which will give more background, detail and technical advice. The following
notes show how this appears to be working out in two areas for which
consultation papers have just been issued.
Draft PPS7: Sustainable Development in Rural Areas
There is much to be supported in this broad statement of the need to help the economies of rural areas, but the balance between economics and the countryside seems hazy. The need to separate policy (PPS) from more detailed guidance (PPG) is not proved by this attempt. Indeed the contrary may be the case, particularly where the shortened forms of wording for the broad statements of policy leave gaps which positively invite developers and lawyers to argue about what the changes signify.
An example of this is the statement in paragraph 2.14 of the old PPG7 that the Government’s policy is that the countryside should be protected ‘for its own sake’. This is replaced in paragraph 16 of the new draft by the statement that planning authorities should continue to protect the countryside ‘for the sake of its intrinsic character and beauty, the diversity of its landscapes and wildlife, and the wealth of its natural resources’. Four words simplified into twenty-three. What is gained by that? And what might be lost? Is it the old problem of trying to shift the emphasis on to scenic quality?
The same paragraph says that planning authorities 'should have particular regard to any areas that have been statutorily designated for their landscape, wildlife, or historic qualities.....’. Many members may not realise that this does not include green belt, which is not a statutory designation but a planning term. True, paragraph 11 does say that the policies in PPS7 ‘would complement but not change other national planning policies (e.g. those set out in other PPGs)’; but paragraph 26, dealing with the countryside around cities and towns, begins ‘Notwithstanding Green Belt policy (as set out in PPG2) where it applies, local planning authorities should ensure that planning policies should address the particular land use issues and opportunities to be found in the countryside around all urban areas, recognising its importance to all who live or work there, and also providing the nearest and most accessible countryside to urban residents’. "Notwithstanding" implies overriding, but the later text could mean merely that local authorities should look at green belt areas as well as others, having regard to green belt constraints in green belt areas. It is this sort of ambiguity which can be so dangerous, and it shows why consultation processes should be taken seriously.
There are many other points to be considered, and it would greatly help if members could get their own copies of this paper and let me know what they think. Ring ODPM on 020 7944 3978. Comments to Phil Grant, ODPM Planning Policy Division, Zone 4/J6 Eland House, Bressenden Place, SW1E 5DU by 12 December.
Revision of PPG3 - Housing
Another example of consultation which confuses more than it elucidates is provided by the issue of two consultation papers on PPG3. One of them ‘Supporting the Delivery of Housing’ provides a draft of a relatively straightforward insertion into the existing PPG3. Nevertheless it leaves the position of green belt too vague, and we have said so; but at least as a whole it is fairly clear. The other paper ‘Influencing the Size, Type, and Affordability of Housing’ is itself in two parts. The first part is a policy statement on affordable housing, and is in full draft form. The second part, which is intended, it says, to give ‘practical advice’, is only in skeleton form, even though the skeleton occupies six pages. But because it is in skeleton form it is impossible to work out what will be included from existing guidance and what will be changed, or simply left out. For example, a section headed ‘Planning for Mixed Communities in Rural Areas’ simply says ‘This section could [my underlining] describe -
Ÿ How to establish local need
Ÿ How to bring forward sites
Ÿ The role and use of small sites
Ÿ When to allocate sites solely for affordable housing
Ÿ How to handle the differing needs of villages and market towns
Ÿ Issues specific to national parks and other areas of restraint. [my underlining]
1Will the last point cover green belt or not? Paragraph 2 of Annex B of the existing PPG3 refers to 'areas which may be subject to policies of restraint, such as green belt...’; and paragraph 5 of the same existing Annex B says ‘...This guidance does not alter the general presumption against inappropriate development in the green belt. Green Belt policy remains as set out in PPG2...'. Is this paragraph going to remain or not? And if it is, is the ‘notwithstanding’ referred to above intended to nullify it?
Apart from the fact that ‘guidance’ in such fragmented form sheds more shadow than light, why is the general policy statement (i.e. the first part of this second paper) which is supposed to make everything clear, not being issued as a PPS, since they are being trumpeted as the Government’s brand new idea?
DEFRA
consultation paper ‘Proposed Amendments to Legislation when Roads Used As
Public Paths are reclassified as Restricted Byways’
This paper seems unlikely to have specific implications for green belt, but our more rural member organisations should know about it. It is an attempt to tidy up the extremely complicated situation created both by law and by terminology. I put it in here both to alert our members with special interests in this direction, and to express sympathy with DEFRA in their job of trying to sort out the muddle. Paragraphs 1.15 and 1.16 of the paper say -
‘Methodology for identifying amendments needed to legislation
1.15 We have examined over 40,000 references in, primary and secondary legislation (i.e. Acts of Parliament, regulations, and orders). These references included some terms familiar to rights of way interests: ‘bridleway’ ‘byway’, ‘byway open to all traffic’, ‘BOAT’, ‘carriageway’, ‘footpath’, ‘footway’, ‘highway’, ‘public path’, ‘right of way’, ‘road used as public path’, ‘RUPP’, ‘road’ and ‘vehicle’ and their plurals.
1.16 We identified different categories of amendment and many examples where no amendment is needed. Figure 1 overleaf illustrates these different categories and the sections dealing with each category in this consultation paper.’
I dare not try to reproduce Figure 1 in these Notes.
Other
Consultation Papers
However,
I am not the only one who is confused. Last week I received from the ODPM free
distribution service in
Finally,
the letter still quotes the
Planning Decisions - Gypsies
I have grouped several decisions affecting gypsies together to show how complicated it is to ensure that environmental decisions are properly weighed against personal considerations, particularly when, as happens so often now, the gypsies seek to invoke human rights considerations.
1. A local authority in Hertfordshire issued an enforcement order requiring an Irish traveller to vacate green belt land on which he was living in five caravans. He appealed, saying that there were not enough legal sites and that he needed stability for the children’s education. The Deputy Prime Minister said that there was no evidence that the needs could not be met elsewhere in the area and that, though dismissing the appeal would interfere with the appellant’s human rights to a home and a private life, this had to be balanced against the harm to the green belt and the countryside. He dismissed the appeal. There were other considerations also. The Council questioned whether the appellant was really a gypsy, since he described himself as a landscape contractor; but the DPM concluded that he probably was. But he noted that the appeal site had been bought by the appellant without consulting the Council as to the likelihood of getting planning permission for the caravans.
2. In another Hertfordshire ease the DPM reached the opposite conclusion. Again there were five caravans. There were ten children to be educated, but the families were not related - they had simply been invited to the site. Educational needs and human rights were invoked. The inspector hearing the appeal against the Council’s refusal of planning permission for the caravans recommended dismissal on the grounds that the circumstances were not special enough to override green belt constraints. But the DPM disagreed and allowed the appeal. [An editorial note in the journal which reported the case said that this was a rare example of human rights considerations overriding established planning policies].
3. A Gypsy woman had lived without permission in a caravan in South Bucks green belt for over 15 years. An inspector allowed her to remain because there were no alternative sites, and her health constituted very special circumstances. The Council appealed to the High Court, which agreed with the inspector. The Council went to the Court of Appeal, which reversed the High Court's decision, saying that the inspector had failed to address the unlawfulness of the woman’s occupation, and that the Council had been entitled to have the case considered in a broader context than merely listing the woman’s hardships.
4. Another case in which the Court of Appeal overturned a High Court decision concerned the question, when does a gypsy cease to be a gypsy. It is not a green belt case but it is worth noting. Two caravans were on a private gypsy site in Wrexham, and the owner wanted to stay, saying that health prevented him from continuing a normal nomadic life-style. The inspector concluded that a gypsy did not cease to be a gypsy in such circumstances, and the High Court agreed. [This was being argued in the context of the Caravan Sites Act, 1968]. The Court of Appeal did not agree, saying that, whereas a gypsy could retain his nomadic life-style though unfit for the time being, the real status of the appellant had to be determined on the facts. If, as in this case, he had ‘retreated to a permanent base’, matters should be considered in the light of whether he had in reality abandoned a nomadic life-style. The inspector had not approached the case on that basis, so his decision was quashed.
1. A small area of green belt on the edge of Welham Green, Herts, had an established use which was rather a nuisance to local residents on part of it. A proposal to build three houses on ¾ acre of the site was rejected by Welwyn Hatfield Council, and there was an appeal. The inspector reasoned that though housing was inappropriate development, it would end the established use and that could justify allowing the appeal on grounds of very special circumstances. But, he said only three houses was not enough in view of the fact that the site had previously been developed and the Government's guidelines on densities in PPG3. So he dismissed the appeal.
This is the first case I have seen where an appeal has been dismissed not because it was building in green belt but because it was not building enough in a green belt. The implications of this decision could be so serious that our President is taking it up with the Deputy Prime Minister.
The future status of the site in the district plan is a separate issue. The inquiry on the plan has been held and the inspector’s report is expected early next year. We hope that it will remain green belt.
2. The decision in (1) above, apart from undermining the character of green belt land, could undermine the decisions often taken by planning authorities that building density on non-green belt land bordering green belt should be less than elsewhere in order to smooth the transition from town to countryside. A recent decision in the Wirral is a case in point. A proposed scheme involved building on non-green-belt land at a density of 47 dwellings per hectare, though the UDP standard was only 20, well below the PPG3 figure. The inspector said that the scheme should be at the lower end of the 30-50 per hectare range. This was justified because the site abutted green belt, a site of biological interest and a conservation area. [The ultimate justification for such policies is, of course, paragraph 3.15 of PPG2, which says ‘The visual amenities of the green belt should not be injured by proposals for development within or conspicuous from the green belt which, although they would not prejudice the purposes of including land in green belt, might be visually detrimental by reason of their siting, materials, or design’.]
3. The revisions to
PPG3 referred to earlier in these notes suggest that a more liberal attitude is
likely to be encouraged as regards the reuse of buildings in the green belt,
like farm buildings. Often this is unexceptionable, but we shall have to watch
how far it goes. There may be fewer decisions like the following. A livestock
building in
4. The proposed
revision of PPG7 devotes much space to assisting rural enterprise and farm
diversification. It is generally supportive so far as green belt is concerned,
but paragraph 30(3) of the draft says -
‘Local planning authorities should.....give favourable consideration to proposals for diversification in green belts where the development preserves the openness of the green belt and does not conflict with the purposes of including land within it. (Where farm diversification proposals in the green belt would result in inappropriate development in terms of PPG2, any wider benefits of the diversification may contribute to the ‘very special circumstances’ required by PPG2 for a development to be granted planning permission)’.
Against that background would the following decision be the same
or not? Caravans were stored in the open at a farm in
Comments and contributions to R.W.G. Smith