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The country is grey and brown and green in trees: Labour’s Grey Belt planning reforms

Insight

Green fields

The Labour Government announced in 2024 that the National Policy Planning Framework (NPPF) would be amended to deliver the Government’s commitments to achieve economic growth and build 1.5 million new homes. The proposed amendments include identification of “Grey Belt” land – land within the Green Belt that has minimal impact on the Green Belt’s core objectives – to be brought forward into the planning system through both local plan and decision-making to meet development needs.

Deputy Prime Minister Angela Rayner said she would write to local planning authorities instructing them to review their Green Belt to identify potential Grey Belt areas (“grey and ugly areas” like car parks) that could be developed, with this development being governed by five “golden rules”.

Since that announcement, the Labour Government has published a revised version of the NPPF in December 2024 and announced its “golden rules”. Further, the House of Lords Built Environment Committee is currently undertaking an Inquiry into the Grey Belt (Inquiry), to seek to gain a better understanding of what Grey Belt land is, how it can contribute to housing targets and what sustainable Grey Belt development looks like.

But what is the Grey Belt, outside of the somewhat opaque planning language contained within the NPPF?

The “Grey Belt”

The NPPF defines the “Grey Belt” as:

“For the purposes of plan-making and decision-making, “grey belt” is defined as land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b), or (d) in paragraph 143. ‘Grey belt’ excludes land where the application of the policies relating to the areas or assets in footnote 7 (other than Green Belt) would provide a strong reason for refusing or restricting development.”

It can be difficult to translate policy aims into legislative drafting, but even so, submissions to the Inquiry have noted that the original draft definition provided by the NPPF was somewhat vague, and unnecessarily split into multiple parts. The Minister for Housing and Planning, Matthew Pennycook MP (the Minister) has noted the definition of “Grey Belt” has been revised in response to this consultation, to seek “greater clarity by streamlining the purposes that grey belt is to be assessed on the basis of and setting a clear bar on quality.”[1]

To understand how this Grey Belt definition would work in practice, however, one first needs to understand what the Green Belt is, and what constitutes Previously Developed Land (also known as brownfield land).

Development in the Green Belt

Despite the importance of the Green Belt within the NPPF, the term is not actually defined. The Green Belt is broadly understood within planning as areas of land protected from development through policy, often located around the fringes of cities. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open.

The development of land within the Green Belt is less restrictive if the land has been previously developed, such as a former factory, school, office block, etc. This land is often referred to as brownfield land. The Government’s “golden rules” include developing brownfield land located in the Green Belt first, which has been the current position in planning and development for some years.

This leaves the second part of the Grey Belt definition to do the heavy lifting in introducing any genuine reform to Green Belt development: areas of Green Belt land that do not make a strong contribution to the three nominated Green Belt purposes (with some carve-outs). The key question is, what new land will actually be open for development within the Green Belt?

The Minister has noted to the Inquiry that the Government anticipates the release of Grey Belt land will be modest, but still be impactful, anticipating a release of Green Belt land as a single-digit percentage, that is, less than 10% of available land.[2]

Is there a possibility of legal challenge?

The Inquiry has noted that a number of witnesses have already expressed a fear that the term “limited contribution” would just lead to endless disputes with lawyers, similar to the “very special circumstances” test that can currently allow some development within the Green Belt. As mentioned above, the definition of Grey Belt has since been modified, with the Minister noting the following on the general issue of legal challenge and uncertainty:

“The planning system works in such a way that the terms “special circumstances” “substantial harm”, “less than substantial harm”, et cetera, which run through the NPPF and other documents, are well understood. Those words have common-sense meaning in the courts and they are taken forward on that basis … I do not think it introduces a level of ambiguity that is not present in other parts of the NPPF. I think it is quite clear what the definition is and, as I said, we will support local authorities with how they apply that definition to green-belt reviews through guidance in the new year.”[3]

Alternative approaches

The alternative for the Government is to provide prescribed definitions that constrain local decision-making. For example, Professor Paul Cheshire of the London School of Economics noted to the Inquiry that he has proposed a presumption in favour of development for all land within 800 metres of a commuter train station, suggesting that this could unlock Green Belt land sufficient for about two million houses across England, with a ready-made transport network. This would offer more certainty to planners and developers regarding Grey Belt land that could be developed if planning permission was applied for, but would reduce the discretion of local planning authorities in determining that planning permission.

The Government has expressed a similar intention, that Grey Belt releases will be achieved through the updating of Local Plans:

“the Government’s clear intention is that, in due course, all green-belt release ideally will occur through plan-making because everywhere will have an up-to-date plan. In effect, grey-belt release outside of plans will ideally be a temporary measure.”

It is ultimately for the Government to consider whether its new Grey Belt definition allows more certainty for planners, developers and local communities following the Inquiry. Broad policy language within the NPPF and local planning authority development plans is not new to planning, nor are disputes about interpretation of that language when making decisions.

The Minister has flagged that local planning authorities will have to adjust their approach in releasing land at either the strategic plan-making stage or at the decision-making stage:

“If a local authority said, “This is too difficult, we’re facing local challenge, we don’t want to proceed”, they will face the penalties of being in the presumption and allowing grey belt to be released through decision-making rather than a more strategic plan-making route.”[4]

Conclusion

In conclusion, it is likely that development decisions regarding the Grey Belt will be litigated, either by applicants or by interested third parties, as “very special circumstances” and “inappropriate development” are currently with respect to Green Belt development.

However, as Reed J memorably noted on planning policy language in Tesco Stores Limited v Dundee City Council [2012] UKSC 13 at [19]:

“development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another … Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

The Government has provided a somewhat clear direction with its introduction of the Grey Belt, that more land within the Green Belt should be open for development. Although there may be some varying views on language, it is now for local planning authorities to implement this policy at the strategic plan-making level and in making planning decisions.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

[1] committees.parliament.uk/oralevidence/15180/pdf/, Q81.

[2] Q79.

[3] Q81.

[4] Q81.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2025

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About the authors

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Jesse Cowie

Associate (Australian Qualified)

Jesse is a planning and environment lawyer with expertise in legislative drafting, statutory interpretation, high-level legal advice and planning and administrative law litigation.

Jesse is a planning and environment lawyer with expertise in legislative drafting, statutory interpretation, high-level legal advice and planning and administrative law litigation.

Email Jesse +44 (0)20 3375 7029
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