Has anyone got around the Openness issue in Green Belt?

[Paul Leigh]

Hi,

 

Had my Pre application meeting today, which went quite well. We are agreed that my garden plot falls under "Previously Developed Land" inside the Green Belt and that some development is likely ok.

 

The sticking point comes in the it harming the openness of the green belt. As the officer described it, something as small a pencil would harm the openness. I know that other houses have been allowed, perhaps with other mitigation but how can openness be tested?

 

Thanks,

Paul

[Mr Punter]

This sounds quite subjective.  It may be worth looking at other successful schemes in the area and taking a cue from them.  If you can find one-off houses, do some research and see who the architect is.

 

Does the local plan give any positive clues?

[Bramco]

Interesting one that.

 

It's a catch all to deny permission. But there are ways round it.

 

The NPPF states there are 5 purposes of a Green Belt, including things like preventing towns merging etc. para 134.  If your land was previously developed then it can't be said to be contrary to the 'purpose' of your local Green Belt. Always a good starting position.

 

Para 145 gives 6 exceptions, including limited infill in villages and replacement of a building so long as the replacement isn't larger than the original and also extending existing dwellings (up to 50% is allowable).  If you qualify as an exception then there is case law which sets out that being an exception means that the question of openness need not be considered by the planning authority - I can dig out the actual case if you need it.

 

The issue for you is that the exception you might qualify under (g) has a restrictive clause about the openness.  To quote '....not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority'.

 

So the key word is 'substantial' and you should search for any housing needs survey the Parish Council may have conducted or even the Borough Council. That would help to identify the contribution to the need.

 

In addition, if the Council doesn't have a 5 year housing plan then all bets are off for them because according to an earlier para in the NPPF they should grant permission.

 

Another way round this is to show 'exceptional circumstances' but this is v hard to do and has to rely on an architecturally special design.

 

I bought a book on all the case law on the NPPF - I'll find it later and edit this with the title and author - it's expensive but well worth it if you find something to support your case.

 

Also a LOT of googling of planning appeals should turn up some cases that support you.

 

Simon

 

EDIT - the book on NPPF case law is 'Interpreting the NPPF' by Alistair Mills QC. Bath Publishing. https://www.amazon.co.uk/Interpreting-NPPF-National-Planning-Framework/dp/1916431526   But be careful, as this was published in 2018 and the NPPF has been revised since then.  You might need to check back on the NPPF to see if the specific clause on redevelopment in the Green Belt has changed.

 

 

Edited February 9, 2021 by Bramco

[Bramco]

10 minutes ago, Mr Punter said:

Does the local plan give any positive clues?

 

The only thing the Local Plan might do is to add some restrictive conditions over and above the NPPF - for example development should be concentrated in a specific list of villages, or there may be restrictive clauses about preserving the 'countryside'.

 

You have to jump the NPPF hurdle first and then jump the Local Plan hurdle.

 

Simon

[Bramco]

37 minutes ago, Paul Leigh said:

We are agreed that my garden plot falls under "Previously Developed Land" inside the Green Belt

 

Just a further thought - if it is a garden plot, why isn't it being considered under the infill in a village clause - this, as I said earlier has case law that says that 'openness' does not need to  be considered.

 

Simon

[Ferdinand]

He doesn't say it is in a village.

[Bramco]

9 minutes ago, Ferdinand said:

He doesn't say it is in a village.

 

If it is, he should be home and dry.

 

Simon

[ToughButterCup]

2 hours ago, Paul Leigh said:

...

The sticking point comes in

...

 

There's often  a similar planning story - different sticky issue.

 

The answer is to research the gonads off it. The end in mind is to be more informed than the planner about 

2 hours ago, Paul Leigh said:

...

but how [is] openness ... tested?

...

 

There is a duty of Consistency in planning . Here's a link to a beautifully well written blog with the search results for Consistency in the planning context. As you hint, other houses have been allowed. Start there. Go into every salient detail with an eye to getting a clear picture about what openness has meant in the recent past. Go to those locations, look at them - assemble a clear body of evidence and then make your own mind up.

 

Also, do an internet search search for Consistency in the planning context. There are many articles about it.

The aim is to know your stuff about (local ideas on) openess far better than the planner to whom you are talking. Be able to back her into a corner with facts and precedent: don't make yourself an easy target.

[Paul Leigh]

Thank you for the responses, some great information here.
 

Each of the houses I can see that got PP in the district, the officer was quick to point out other mitigation, an “ah but… “ type response, to which my view is that the Openness can’t be being applied consistently, exactly as ToughButterCup points out.
 

I’m in a small hamlet, off a B road, I’ve attached an outline of the neighbouring properties with my current house and proposed house/annex labelled.
 

I had considered this an infill project but the guys at Potton (not using them btw) said it wouldn’t be classed as infill as was a back garden, that infill meant in between houses only. In actual fact, now that it’s been raised again, I’m minded to point out to the council that the new development would be in my side garden as my front door is 90 degrees to the road, my back garden remains untouched. Perhaps infill is a way to go here?
 

The north side of my garden (picture is North up) is bordered by trees so there is no way to see through. Any building will not impede anyone’s view from any vantage point.

Bramco, from what I understood, the council have a 5 year house supply plan but are falling short on delivering. It’s a heavily Green Belt area. We’ve agreed that the garden by virtue of it being a residential garden in a non built up area is classed as “Previously Developed Land” and I additionally have a workshop on the land and an LDC I took out for a 97 SqM garage a few years ago that I never started and the foundations of a garage no longer standing. We don’t have a Local Plan, that’s been rejected by the Gov.

I took from the meeting that anything above the already existing footprint of the LDC and single storey height would be a problem for her and that the Openness clause would be used against me. This is the fight. In all other aspects she was quite helpful with saying that the plan was reasonable and nothing else stood out as a likely objection, ecology reports aside of course.
 

Time to become a research-a-holic on openness cases then, thanks everyone.

 

Edited February 9, 2021 by Paul Leigh

[Big Jimbo]

I did my planning myself, which might have been a mistake, but i could'nt face the £30k quotes i got from 2 good local planning consultants. I am also in Green Belt. Parish Council, Neighbours, etc are all anti extending, let alone new build. I did as much research as i could, and nicked several bits from previous successful applications. I did sightline drawings that showed that my proposal was less harmful to the openess of the Green Belt, than what i already had been granted permission to build. My problem was that the lame planning officer just went along with the parish council, (and does in all his decision making) because he has no ability to form an opinion of his own, and just want's an easy life (lazy). This means that he basically follows the reccomendation of the Parish Council, (Who all act as planning officers even though they have zero training or expertise) This makes it very hard to get anything done if you end up with a particular Two planning officers at the local council.

Research, research, research. You can't do enough, or pay a very smart local planning consultant if you have one. It's either that, or resort to the hooker, coke, and photos. That also works wonders.

Good luck in your quest.

Interestingly, Two schemes very similar to what i got eventually passed have both been refused within 50metres of my my place, since i got my PP. Perhaps i should have passed on the telephone number of my fixer. ???

[Paul Leigh]

I haven't priced up planning consultants yet but £30k seems unwarranted. It's early days yet, it was just the pre app, so I'm taking it as pointer of where I need to concentrate my efforts and the message is the same, research and proof of others doing it, so they can't reasonably refuse. 

I have a local architect a few doors away so I'll see if he's up for the challenge first.

[ToughButterCup]

13 hours ago, Paul Leigh said:

... and the message is the same, research and proof of others doing it, so they can't reasonably refuse. 
I have a local architect a few doors away so I'll see if he's up for the challenge first.

 

Exactly. Could I suggest you do your research before you talk to the architect. Unless yours is a planning specialist (as opposed to an ' educated artist '  - as some on here would have it ) . He'll be up for the challenge on your purse. If you research thoroughly first, the challenge to your purse could well be smaller.  Innit?

[the_r_sole]

immediate reaction is that the development looks completely at odds with the existing settlement pattern, although the current house also is, you could say the proposed would appear as back land development which many local authorities are opposed to. Speak to a planning consultant as early as possible to understand if this is even slightly a go-er! The ones that we use will tell us that if they don't think there's a chance before needing paid!!

 

infill needs to be in between two things to be infilling something, so that's a massive stretch!

Edited February 10, 2021 by the_r_sole

[ToughButterCup]

20 minutes ago, the_r_sole said:

immediate reaction is that the development looks completely at odds with the existing settlement pattern,....

 

And @Paul Leigh, there's your starter for 10.  Look for developments that (at the time they were suggested)  '... look  completely at odds with ...' . @the_r_sole 's repsonse seems negative. It isn't - it's extremely valuable : its the issue that, once addressed, will get you a few steps further on your way to Planning Permission. 

 

Persistence . Good luck.

Ian

Edited February 10, 2021 by ToughButterCup

[the_r_sole]

Hah, yeah, sorry -  my post is probably quite negative, I've just had a lot of arguments with planners!!

[Jilly]

1 hour ago, ToughButterCup said:

 

Exactly. Could I suggest you do your research before you talk to the architect. Unless yours is a planning specialist (as opposed to an ' educated artist '  - as some on here would have it ) . He'll be up for the challenge on your purse. If you research thoroughly first, the challenge to your purse could well be smaller.  Innit?

I wonder if an architect neighbour might not be the right person to consult as he would be personally involved if he or your neighbours have objections. Just a thought. Definitely get an architect who knows you local council tho'.

 

[ToughButterCup]

3 hours ago, the_r_sole said:

... my post is probably quite negative,...

 

But usefully so ...

[Paul Leigh]

4 hours ago, the_r_sole said:

immediate reaction is that the development looks completely at odds with the existing settlement pattern, although the current house also is, you could say the proposed would appear as back land development which many local authorities are opposed to. Speak to a planning consultant as early as possible to understand if this is even slightly a go-er! The ones that we use will tell us that if they don't think there's a chance before needing paid!!

 

infill needs to be in between two things to be infilling something, so that's a massive stretch!

You could be right but the Current house (an Oast House) was here first. In the surrounding area, there are plenty of examples of houses not on the road and are down tracks, just like mine.

I've got the pre-planning advice back now, I'll read it slowly over a few nights but I've already found examples in the local area of properties where through one mitigation or another, the question of openness has been set aside. 

 

Thanks for all the valuable advice on here.

[the_r_sole]

44 minutes ago, Paul Leigh said:

You could be right but the Current house (an Oast House) was here first. In the surrounding area, there are plenty of examples of houses not on the road and are down tracks, just like mine.

I've got the pre-planning advice back now, I'll read it slowly over a few nights but I've already found examples in the local area of properties where through one mitigation or another, the question of openness has been set aside. 

 

Thanks for all the valuable advice on here.

 

There's the current house arrangement which has it's own access from the main road, and then your proposal which takes that one step further introducing a shared access from the main road and new development where you have to pass one property to get to the one behind - so if you're looking for examples then that's what to look for.

The other thing to consider is that if that relationship with the oast house (can't help singing the alan partridge podcast theme here!) is common i.e. further from the road and behind other houses, it might make your case weaker to develop the area behind/around it as the oast house is no longer a stand alone unit.

If ever there was a job for a planning consultant....

[gravelrash]

Is the village washed over with Greenbelt or does it have a boundary? If its washed over then this may help your case as development is needed to increase housing stock...but I have generally found planners take the approach that anything new rather than conversion or replacement, is encroachment and impacts openness and inconsistent with greenbelt policy and NPPF. As they deem your garden as PDL is a good start, screening the garden with high hedging from views onto the area also goes a long way on application and/or appeals.

[Ian]

On 09/02/2021 at 20:31, Paul Leigh said:

I haven't priced up planning consultants yet but £30k seems unwarranted.

I'd try shopping around. A few years ago I went through something similar and the Planning Consultants fee was £4,300. It was for a new-build house in the green belt in an AONB (in Wales) and involved them preparing 2 planning applications and an appeal. (I did the drawings and they did all the paperwork). I regularly do planning applications myself but I knew that I didn't have the necessary expertise with this one. We would never have got PP without the consultant. It's probaly the best £4k I've ever spent in my life.

Edited February 11, 2021 by Ian

[Bramco]

14 minutes ago, Ian said:

I'd try shopping around. A few years ago I went through something similar and the Planning Consultants fee was £4,300. It was for a new-build house in the green belt in an AONB (in Wales) and involved them preparing 2 planning applications and an appeal. (I did the drawings and they did all the paperwork). I regularly do planning applications myself but I knew that I didn't have the necessary expertise with this one. We would never have got PP without the consultant. It's probaly the best £4k I've ever spent in my life.

 

Agree that £30k seems way over the top. The planning consultants we used for our appeal did it for just under a grand - that was mates rates though, so cost rather than commercial prices.  We'd done a lot of legwork though like finding successful appeals for similar projects and had written a draft appeal statement. If you are interested in reading our appeal statement it's here -> http://bit.ly/2DN1YxX.  Ours was for infill in the Green Belt and the plot is just outside the village inset line - there are 6 or 7 houses on a lane to the farm that were left out of the Inset line round the village.  And I can IM the consultants name and company if you want to talk to someone, I think they've now a few successful GB appeals.

 

Simon

[Paul Leigh]

Thanks Simon, that's very interesting. I've found a handful of Infill in the green belt approvals in our local area now too. It strikes me that the openness objection is set aside in all of the infill cases as to refer to the officers analogy of a pencil harming the openness, all new builds where nothing existed prior, must also fall foul of that test. It's the same P145 clause of the NPPF that my PDL has an exemption for.

I'm going to talk to a few architects who have managed new green belt buildings and see how far that approach tales me. 

I have an LDC for a circa 100 Sqm garage on the site already and it's been suggested I could add a basement of the same size and get that through without too much difficulty. Seems a few issues with that but thinking aloud, maybe I should get another ldc for a 300 sqm swimming pool house and then look to replace both with the actual building I want. Not, easy this planning lark.
 

[Bramco]

37 minutes ago, Paul Leigh said:

openness objection is set aside in all of the infill cases

 

There is case law that states that for any exception to the green belt inappropriateness rule,  openness is not a consideration in terms of assessing a planning application. Sadly for you your exception PDL has a rider on it that openness should be considered. It's the only exception that still has that openness rider.

 

The case law for the other exceptions is Lee Valley Regional Park Authority, R (on the application of) v Epping Forest District Council & Anor (Rev1) [2016] EWCA Civ 404 (Appendix 2) that clarifies that exceptions for development in the Green Belt are not deemed to harm the Green Belt or openness. It's obvious really - anything meeting one of the exception criteria is not inappropriate development - therefore it can't be harmful.

 

So if there's any way to have it deemed infill then that would help.

 

I found some good examples of backfill that had been allowed at appeal.  One which might help you which you can find on the Planning Appeal site was prepared by a planning consultancy firm - I tried to attach the document but it's too big. They had quite a bit of success in that area, they won this case but the NPPF has changed subtly since then. The appeals website -> https://www.gov.uk/appeal-planning-inspectorate.  lets you search but then you have to check the files on the local authority website.  Takes time to find them but gives lots of ammunition. The one above was appeal APP/P0240/W/17/3185864 (Land adjacent Timber Ridge, Woburn Lane, Aspley Guise). Which was for planning application CB/17/02661/FULL which is in Central Bedfordshire.  Their website is truly crap...  But here's the link to all the documents -> http://cbstor.centralbedfordshire.gov.uk/publicportalviewer/publicViewer.html?caseID=CB/17/02661/FULL.   The appeal statement I tried to upload here is at -> https://app.box.com/embed/preview/53orjeqh0k8vwulg35ri68gnz1p83r0o?direction=ASC&theme=dark   which might or might not work, if it doesn't, you should be able to get to it by following the previous link.

 

We used this one which is infill -> Appeal Decision at Snitterfield (APP/J3720/W/16/3167715)

 

Simon

[Johnnyt]

I won appeal for infill in GB where impact on openness was reason for refusal, APP/A0665/W/18/3198387

I saw the junior barrister, Ned Helme, under the Public Access System, who advised the winning side in the Lee Valley case involving openness.

The cost for his opinion was not prohibitive, he eventually advised me on the appeal and I also got a  full full award of costs against the LPA.

It may be worth an appraoch to his clerk to see if he can assist

 

JT