As the controversial Ilot v Mitson goes to the Supreme Court, another adult child claim under The...
When Green is Brown (and Vice Versa)
Development in rural areas presents a number of challenges for planning teams and developers alike. Whilst planning policy is clear that previously developed (i.e. 'brown') land is to be used for new housing in preference to undeveloped ('green') land, even virgin greensward can be distinctly 'brown', while some very 'brown' buildings are nevertheless 'green'. For example, agricultural buildings are currently expressly excluded and therefore count as green land for sequential testing purposes.
The starting point was PPG3 Annex C which stated that land which has or had buildings, minerals extraction, or waste disposal on it is 'brown'. In one planning case, the planners tried unsuccessfully to restrict new housing to just 60% of an overall site in Cheshire, excluding the 40% which had no visible trace of previous development, and looked 'green'. The Inspector decided that the site was all within one curtilage. He therefore followed another Annex C principle, that all the land within the curtilage of the qualifying building was 'brown' and could be developed, despite some of it looking green.
In another decision the Inspector allowed residential development on a recently fenced-off vacant and partly derelict 'brown' site, used for years by residents as 'green' amenity land, despite ongoing attempts by the Council to obtain for it town green status. Both decisions show a practical approach by Inspectors on appeal.
'Brown' credentials, however, are not always enough to secure site allocation for residential development through the Local Plan or Local Development Framework, or as a windfall site. Sequential testing will instead favour more sustainably accessible sites and the protection of the countryside for its own sake. The need of appeal inspectors to uphold these policy principles can lead to the frustration of genuinely well-meaning attempts to boost rural housing land supplies and to create affordable housing for local needs.
As the Cheshire case shows, landowners, developers and housing providers grapple daily, on a site by site basis, with the technicalities of the green/brown land policies.
The Government publishes guidance on current planning law (the most recent substantial changes to which took place in 2014) on its planning portal.
The Government Planning Portal has published guidance called 'Do You Need Planning Permission?' to aid those considering property developments: for expert advice on planning law contact us.