Gardens or Green Belt – A Question of Land Supply

Some years ago as public concern grew about the loss of greenfield land to development, the Government sought to concentrate housing development on brownfield land and set targets for local planning authorities.  Brownfield land was defined as “previously developed land which is or was occupied by a permanent structure, including the curtilage of the developed land and any associated fixed surface infrastructure”.  Some exceptions to the definition were listed such as urban parks, recreation grounds and allotments.

There followed a major shift in housing development from greenfield to brownfield sites, many local planning authorities exceeding the brownfield target.  While the target was primarily aimed at bringing derelict or underused urban land into use one major consequence was to encourage building on urban gardens, grounds, orchards and paddocks.  Though never previously developed, these green enclaves were classed as brownfield land.

For many years gardens had been steadily developed for housing with or without the redevelopment of the houses within whose curtilage they lay.  Increasing complaints from neighbours about encroachment, loss of trees and adverse effects on local character, some recognised as conservation areas, led to action to protect these green spaces.  By 2008 nearly 25% of residential completions were on garden land.  Typically affected most were lower density suburbs such as Roundhay, Leeds, and towns such as Tunbridge Wells, Kent.  There the local MP, Greg Clark, the former Minister for Planning who lost his position in the recent reshuffle, brought forward a Private Members’ Bill when in opposition.  This Bill, which was approved, removed gardens from the definition of previously developed land.  This empowered councils to reject damaging or un-neighbourly developments on garden land.

In June 2010, almost immediately after taking office, Mr Clark formally amended Planning Policy Statement 3: Housing to exclude private residential gardens from the definition of previously developed land.  The effect was to remove policy support for development on such land.  Accompanying the change was action to reduce housing development density by deleting the national indicative minimum density of 30 dwellings per hectare.  These measures not only reduced the potential development capacity of urban areas but increased pressure on other locations, notably greenfield and Green Belt sites.  Nevertheless the change was widely welcomed in the communities where erosion of garden space was longstanding.

Revised national planning policy (National Planning Policy Framework, March 2012) duly incorporates this change.  A separate paragraph (53) reads:

“Local planning authorities should consider the case for setting out policies to resist inappropriate development of residential gardens, for example where development would cause harm to the local area.”

The policy does not ban any future development of gardens but if policies are brought forward in emerging plans then development of residential gardens will be severely constrained.

In setting out housing land supply figures in their development plans, local planning authorities have traditionally made an allowance for windfall sites in the five year supply.  The National Planning Policy Framework defines the term as “sites which have not been specifically identified as available in the local plan process. They normally comprise previously developed sites that have unexpectedly become available”.  Paragraph 48 of the NPPD specifically states that any windfall allowance should not include residential gardens.

Over 63 years of plan-making windfall sites have in many areas been consistently available and a reliable source of supply.  In few places is this likely to be true in future.  Firstly, over all those years the more developable and accessible sites have mainly been developed.  Secondly, two or three generations have come and gone and those homeowners wishing to keep their gardens and grounds untouched in their lifetimes will often have been replaced by owners who have realised the development potential.  Thirdly, the new protection for gardens will greatly reduce the supply of windfall.  Other sources (e.g. disused builders’ yards) clearly exist but these too are diminishing.

Of concern is the continuing reliance on windfall by some local planning authorities as part of their five year land supply despite the policy change.  Thus in its development plan core strategy Leeds makes an allowance of 8,000 dwellings for 2009 – 2026.  This seems to be based on past trends without factoring in the policy change.  The NPPF quite rightly requires that housing land supply has to be realistic and deliverable.

Already there is case law on this policy amendment.  Dartford Borough Council v Secretary of State for Communities and Local Government dealt with a proposal to build eight dwellings within the curtilage of two dwellings that would be replaced.  The local authority obtained the quashing of an Inspector’s decision to approve the proposal.

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Planning Law firm based in Leeds. Advising upon major infrastructure projects and more complicated negotiations is our forte but we are experienced in all aspects of planning law and policy. In the latest rankings within Chambers UK 2017, Walton & Co has been ranked as a leading firm. In addition, a significant part of our practice is advising upon highway and transportation matters, which may often form pre-conditions to the commencement of development. Compulsory purchase law and compensation form an increasing proportion of our work, where we often work with clients' retained property and agricultural lawyers and surveyors. We also advise local and public authorities including Parish Councils upon planning related administrative issues.
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