National planning policy stipulates that altering the boundaries of the existing green belt must be done through new or updated local plans and "exceptional circumstances" are required. It is a phrase that has frequently been a legal battleground as anti-development campaigners have challenged the judgement of planning authorities, and it is one that has been invoked with increasing frequency as government has increased the pressure on councils to meet their objectively assessed housing needs. In 2018-19, 13 English councils released green belt for development, according to the latest government figures, the highest number since records began in 2010/2011.
The 2018 revisions to the National Planning Policy Framework (NPPF) added the requirement, unchanged in the 2019 update, that exceptional circumstances should be "fully evidenced and justified, through the preparation or updating of plans". It states that, before green belt boundaries are redrawn, an authority must demonstrate that it has "examined all other reasonable options for meeting its identified need for development", including making use of brownfield land, increasing the density of existing settlements and exploring whether neighbouring authorities can help meet its needs.
"We now have a more helpful prescription in national policy as to the sort of matters that the government will expect to see have been addressed through the plan-making process before an inspector is likely to accept that an exceptional circumstances case has been made," says Zack Simons, a planning barrister at Landmark Chambers, "although in reality I don't think there is much of a shift in substance from the first NPPF in 2012."
The government's Planning Practice Guidance does not provide much further assistance, says Asher Ross, a director in consultancy JLL's planning team. "It has three very small paragraphs and they are more about how, after you have decided to release green belt, you can sell it to the local community. In this case, the NPPF provides everything you really need to make a decision, certainly in terms of plan-making."
However, the NPPF stops short of defining which circumstances can be considered exceptional. The most important recent contribution to that effect was the December 2019 judgment dismissing the High Court challenge to Guildford Borough Council's local plan, which de-allocated three major sites from the Surrey town's green belt. The judge, Sir Duncan Ouseley, concluded that "exceptional circumstances" is a less stringent test than the test applied to planning applications for development that would normally be seen as inappropriate in the green belt, which requires "very special circumstances".
Furthermore, he ruled that no more than one individual circumstance was needed. In addition, "'exceptional circumstances' can be found in the accumulation or combination of circumstances, of varying natures, which entitle the decision-maker, in the rational exercise of a planning judgement, to say that the circumstances are sufficiently exceptional to warrant altering the green belt boundary," he said.
"That judgment is really helpful because it is recent, explicit and relatively comprehensive," observes Simons. "The court accepts that whether or not an exceptional circumstance is accepted as such in any particular case is a planning judgement, and courts are reluctant to interfere with questions of planning judgement."
Christopher Young QC, a planning barrister at No5 Barristers' Chambers who represented one of the developers interested in the Guildford case, adds: "The judge goes on to say that general planning needs such as ordinary housing are not precluded from the scope of exceptional circumstances. You don't need to show that there is a pressing need or an acute need. A council can decide that it wants to meet its housing need so it will put houses in the green belt and that is absolutely fine."
Planning scrutinised 18 local plan examination reports from 2018/19 and 2019/20 to identify the factors most commonly agreed by inspectors to contribute to the presence of these exceptional circumstances.
Most inspectors take a two-stage approach, first considering whether exceptional circumstances exist at the strategic level – usually in the form of unmet need and the difficulty of meeting that need on non-green belt sites – and then go on to examine whether local and site-specific factors exist to further support the argument that exceptional circumstances exist for the release of individual parcels of land. Below, we highlight five of the most frequent factors cited by inspectors to justify green belt release.
Unmet need for development
In making a case for exceptional circumstances, local authorities invariably start by identifying unmet need. Much of the time, the strongest emphasis is on housing need. In the Guildford local plan examination, the inspector partly justified the green belt releases on the grounds that the area "has a pressing housing need, severe and deteriorating housing affordability and a very serious shortfall in the provision of affordable homes".
However, other kinds of development needs may also contribute to exceptional circumstances, in particular the need for land to accommodate employment growth. Examining the Cambridge local plan, the inspector concluded in August 2018 that the expansion of Peterhouse Technology Park on green belt land should be allowed in part because of the "importance of research and development to the Cambridge economy and, in turn, to the national economy". Other unmet needs identified by inspectors as contributing to exceptional circumstances include educational need, the need for Gypsy and traveller pitches, student needs and the need to maximise the economic benefits of High Speed 2.
However, councils should not jump to the conclusion that, when they cannot meet housing need, they can automatically look to the green belt, argues Catriona Riddell, strategic planning specialist at local authority body the Planning Officers Society. "I don't think the Planning Inspectorate are helping because they are leaping to that conclusion as well," she says. "It should be a cost-benefit analysis. Local authorities do not have to meet their needs in full, but if they are not, they just have to have a robust policy that explains why. The NPPF is still quite tight on green belt, but the application of green belt policy is quite weak."
The release is the most sustainable option
"If your spatial strategy is to try to focus development on the most sustainable settlements, and in order to do that you need to release green belt, that factor is held to be relevant to the package of factors which make up exceptional circumstances," says Jonathan Easton, a planning barrister at Kings Chambers. He cites the example of Wyre Council in Lancashire, where the examining inspector approved the local plan's release of green belt land at Poulton-le-Fylde in February 2019 because the town is "at the top of the settlement hierarchy, has a good range of services and facilities and is well served by sustainable travel modes, including the borough's only railway station".
"Most local authorities have declared climate emergencies, so you have to consider that," adds JLL's Ross. "If it is a choice between a sustainable development in the green belt or one elsewhere that will be less sustainable, that makes a very good case to add to the exceptional circumstances. It would be difficult to demonstrate to an inspector that there is an exceptional circumstance to release green belt land that is not sustainable or cannot be made so in terms of reducing private car usage and establishing better public transport."
The 2018 inspector's report on East Hertfordshire's local plan supports that view, stating: "For reasons of lack of access to services and facilities, and access to sustainable modes of transport, locating significantly more development outside the green belt would not be a sustainable approach."
Lack of contribution to green belt purposes
The NPPF says that green belt serves five purposes, which include checking urban sprawl, preventing neighbouring towns merging and safeguarding the countryside. Many local authorities carry out regular reviews that seek to quantify the contribution of their green belt parcels of land to these purposes. These reviews may recommend the release of sites that score less well against the national policy tests. That approach is often endorsed by inspectors when deciding whether exceptional circumstances exist.
In the October 2019 report on Broxtowe's local plan, the inspector stated that "the need for housing, the lack of alternatives in sequentially preferable locations outside of the green belt and their limited impact on the openness and purposes of the green belt constitute exceptional circumstances". However, according to Matthew Spry, a senior director at consultancy Lichfields, it is not necessary for land to contribute little to green belt purposes for exceptional circumstances to exist. "Land might perform a moderate or even strong green belt role and there may be exceptional circumstances to release it because it is in the most sustainable location or achieves other objectives," he adds.
Creation of defensible boundaries
The NPPF states: "The essential characteristics of green belts are their openness and their permanence." Planning's analysis shows inspectors frequently give weight to considerations around whether a new defensible boundary can be established after a site is released. Clear boundaries may be provided by existing roads, woodland, hedgerows, railways lines and other physical features. In other cases, the release of land or associated work on site is considered to contribute to a sensible and well-defined boundary more likely to bolster the permanence of the green belt and provide a more robust barrier to future encroachment.
In the examination of Cambridge's local plan, the inspector concluded that having two green belt housing sites "gives rise to an opportunity for planting along the eastern boundary to form a stronger, landscaped edge to the city in this location". In Poole, the inspector's report, published in October 2018, considered that there was "little logic, defensibility or permanence to much of the existing green belt boundary", but said the situation could be mitigated by realigning the redrawn green belt boundary with the edge of the existing built-up area.
Limited visual impact
In February, the Supreme Court's judgment in the Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council case opined that, while there is no express requirement in policy to take visual impact into account when considering the impact of development on green belt openness, it could still be a relevant factor for decision-makers exercising their planning judgement. Planning's analysis shows inspectors commonly consider whether there are features that would visually separate proposed green belt development sites in local plans from the surrounding open countryside, or make them less prominent in the wider landscape, thereby avoiding such allocations appearing to contribute to urban sprawl.
Green belt sites are sometimes judged to be urban in character, particularly where they are already surrounded by buildings on two or three sides. Where historic buildings or settlements are present, lack of harm, or limited harm to their settings, can make a contribution to the existence of exceptional circumstances. For example, the Guildford local plan inspector's report, published in March 2019, states that one of the sites released from green belt is "well separated from the historic centre of Guildford by extensive development and does not contribute to the setting of the cathedral or its historic core".
The converse is also true, however. The inspector examining the Barnsley local plan in December 2018 found that a proposed green belt housing site would be harmful to the setting of designated heritage assets, and therefore concluded that exceptional circumstances to alter the boundary did not exist.
OTHER COMMON EXCEPTIONAL CIRCUMSTANCES
Provision of infrastructure
Larger developments may play a role in providing transport or social infrastructure for surrounding communities. In some cases, allocation of green belt land is judged to be the only possible way of enabling a scale of development sufficient to fund new provision and avoid strain on existing facilities.
Reuse of brownfield land
Where some or all of the green belt site has been occupied by buildings, inspectors may rule that the recycling of derelict and underused land is an exceptional circumstance.