Notes on the Revised Draft NPPF

 

The National Planning Policy Framework was adopted in 2012 and, as has been proudly repeated, consolidated over 1000 pages of national planning policy into a document of less than 50 pages if you exclude the introduction, table of contents, glossary etc.  Six years later and following the White Papers published in February and September 2017 ( ‘Fixing Our Broken Housing Market’ and ‘Planning for the Right Homes in the Right Places’ ), a revised version is out for consultation.  Consultation closes 15 minutes before midnight on 10 May 2018.  The draft National Planning Policy Guidance is also out for consultation during the same period.

These are the unsubtle things that stood out to me from my reading of the consultation documents:

Paragraph 11 is the new paragraph 14!

  • The list of exceptions to the presumption in favour of sustainable development is now defined instead of framed as examples. This relates to the exception to the policy in paragraph 11 of the draft document (currently in paragraph 14 of the NPPF) which states that where there are no existing or up-to-date planning policies – and according to paragraph 75 of the draft NPPF, where there is an under-delivery of housing supply –  local planning authorities must grant planning permission unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits (it is apparently possible to cross-examine to infinity and beyond on paragraph 14 of the NPPF, in my experience – “ADVERSE impacts you say?”  “SIGNIFICANTLY outweigh???” “Are you telling me that this Council can really demonstrate…yes it says DEMONSTRABLY…..that the impacts WOULD significantly and demonstrably…can you turn to page 7668 of your bundle again for the fourth time for me, please?  Thank you very much. “).
  • Presenting the list of exceptions as examples caused more trouble than it was worth and the list is now exhaustive.  The proposed exceptions are Sites of Special Scientific Interest, Green Belts, Local Green Space, AONBs, National Parks, Heritage Coasts, irreplaceable habitats (new), aged or veteran trees (new), designated heritage assets or assets of archaeological interest (the latter is new) and areas at risk of flooding or coastal changes.
  • There has been quite a bit of tweaking to paragraph 11 in the consultation draft NPPF.  An ‘Edit-Find’ job  reveals that the phrase “golden thread” is gone forever, probably due to overuse and abuse.  A more substantive change relates to how the presumption in favour of sustainable development is described.  It means approving proposals that accord with an up to date development plan without delay, and where there are no relevant  policies or the policies which are most important for determining the application are out of date, granting permission unless footnote 7 exceptions apply or there is the requisite adverse impact (I’ve underlined the new bits from the draft NPPF).
  • I think it’s great that the Government proposes to clarify that when it is referring to out-of-date policies, it means the ones that are relevant to the development in question.  I also think reducing national policy to the NPPF was a positive move (leaving aside the difficult-to-print NPPG which is still shorter than the previous national guidance).  However being a smaller document, it does mean that its words are more significant and likely to attract more debate or litigation.
  • I do think the phrase ‘most important’ will be fertile ground for dispute and it may be helpful to either widen this phrase to ‘relevant’ or make an attempt to define ‘most important’.
  • Finally on paragraph 11 of the draft document, the presumption in favour of granting sustainable development is clearly strengthened.  The specified list of exceptions must now provide a “clear reason for refusing the development”  rather than just indicating that the proposed development should be restricted which is more than just a cosmetic or clarifying change.
  • Affordable Housing
    Solving the affordable housing crisis/problem is one of those things I can hold quite heated discussions about without completely understanding all the various surrounding issues – a bit like gun control and school league tables.  I usually end these conversations by saying “Well, I’m not saying I understand everything about it but it just seems to me…”.  When I say I don’t understand it, by the way, I’m speaking as a planning lawyer in the context of other planning professionals.  I am, of course, light years ahead in my understanding when compared to non-planning people : )
     Paragaphs 63 to 67 of the draft NPPF requires 10% of affordable housing to be in available for home ownership.  
    Other provisions which are likely to have a negative effect on affordable housing are the thresholds for requiring affordable housing and the emphasis on smaller sites.  Trying to discourage developers from sub-dividing sites to avoid affordable housing obligations can occasionally be tricky – it’s always tricky, in fact, but by ‘occasionally’, I mean the problem doesn’t come up that often. Paragraph 69(d) of the draft NPPF expressly supports the sub-division of larger sites to help speed up the delivery of homes.
    There are many facets to the housing crisis and affordability is a big part of it.  Building more houses will help but the gap between reasonable multiples of  wages and house prices and developers’ profit projections which are based on current and/or increasing house prices may mean that this will not guarantee affordability in the short to medium term.  On one hand any  trend towards cutting affordable housing obligations is unlikely to  help matters.  The counter argument is that the current affordable housing provisions are so onerous and so tricky to implement that it is having a knock on effect on building market housing, making the latter more expensive and out of reach for many potential buyers.

Housing Need

  • The draft NPPF requires  use of  the standard method in the national planning guidance (now draft – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/687239/Draft_planning_practice_guidance.pdf) to assess housing need unless there are exceptional circumstances that justify an alternative approach.  That alternative approach has to also reflect relevant demographic trends and market signals.
  • I’ve looked at the draft practice guidance and it appears to set out fairly precise methods of determining household projections and adjusting in accordance with market signals using statistics from the Office of National Statistics.  I’ve also looked briefly at the 2015 guidance on assessing local housing needs and note that many of the terms in the draft guidance are not new.  However the 2015 guidance states that:

There is no one methodological approach or use of a particular dataset(s) that will provide a definitive assessment of development need. But the use of this standard methodology set out in this guidance is strongly recommended because it will ensure that the assessment findings are transparently prepared. Local planning authorities may consider departing from the methodology, but they should explain why their particular local circumstances have led them to adopt a different approach where this is the case. The assessment should be thorough but proportionate, building where possible on existing information sources outlined within the guidance.” – which is of course different from the draft proposal for authorities to demonstrate exceptional circumstances which justify an alternative approach to assessing housing need.

  • The guidance states that if the housing need is too great, in certain circumstances, authorities can cap the level of need to make it deliverable.  Once need is determined. using the standard method. it can be relied on for 2 years.  Like the current NPPF, the draft guidance also talks about how to establish needs for different groups – including those in need of affordable housing and the need for strategic and joint planning.  It will be interesting to see how the government and planning authorities deal with the challenges brought about by the bedroom tax which means that there is a shortage of suitable affordable housing for single people in need of them, including non-custodial parents who may not feel comfortable bringing their children into certain types of dwellings in multiple occupation.
  • Paragraphs 74 to 78 set out proposals to boost the chances that a supply of deliverable sites will be maintained at the agreed rate for the appropriate time.  Paragraph 78 stood out to me as it seeks to solve the  problems of ‘land banking’ in a tried and tested manner – make developers build or at least start building their houses in a shorter period of time or risk losing their permissions (the secret to writing a successful  ‘Greedy Developers Banking Land To Increase Their Profits!’ exposé  is, I think, is to avoid making it sound too much like a ‘Business Person Who Enters Into Business, And Not Charity Or Public Service, Seeks To Maximise Their Profits’ story).  We’ll see how much reducing the default time period of 3 years to a discretionary time period of 2 years (I have no information that the statutory default time period will change) in the context where many authorities can and have reduced the default period to less than 2 years, will help matters.

Housing density

    • Minimum densities are creeping back in certain areas.  The first sentence of paragraph 117 describes the competing interests quite well in my view

Planning policies and decisions should promote an effective use of land in meeting the need for homes and other uses, while safeguarding and improving the environment and ensuring safe and healthy living conditions.

  • It’s a tough task facing very many countries.  We want houses to be of a reasonable size with reasonably sized amenity spaces.  We want to respect character and we want the area to look nice.  We want people to enjoy natural sunlight and all those things which make them feel good and are environmentally friendly.  We want people to feel like they are living in a free market where they can buy something close to what their money ought to afford them instead of some utilitarian dystopia where everyone is crammed into identical box-like apartments.  However, something’s got to give because we need hundreds of thousands of houses every year.   The compromise is, in the draft NPPF, a focus on brownfield and under-used sites, building and extending upwards, use of air space and a “flexible approach in applying policies or guidance relating to daylight and sunlight, where they would otherwise inhibit making efficient use of a site.”

Green Belt

  • The draft NPPF by and large retains most of the protections of the Green Belt.  Removing the inconsistency that categorises certain new development, but not material changes to the same development,  as appropriate development is a positive move.  Paragraph 145 (e) includes the following in the list of other ‘not inappropriate’ development:

material changes in the use of land that would preserve the openness of the Green Belt and not conflict with the purposes of including land within it (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds, so long as the development would preserve openness); 

Developer Contributions

  • There is some reform aimed at tackling the troublesome areas of viability and developer contributions.  Firstly, the local plan should make clear what contributions should be expected – which I thought it did already.   There are also amendments to make viability assessments more formulaic – there is a draft national approach to such assessments –  and transparent.   The obvious challenge will be how to protect applicants’ confidential financial information.    There is some talk of capturing increases in value of large or multi-phased developments (see page 12 of the consultation proposals).  It is not clear if this simply means  recapturing infrastructure funds which are  ‘lost’ due to viability assessments or attempting to give the community a share in the increased value of the land following planning permission and development.

Other proposed changes include:

  • clarifying the sequential test for town centres specifically in relation to the availability of town centre and edge of centre sites before moving on to out of centre sites with their lovely parking and lovely play areas that never seem to interest children for more than half an hour.  The town centre/edge of centre sites do not have to be available immediately to be in the running; they can include sites that are expected to become available within a reasonable period.   I wonder if it is possible to also plan for the effect that online shopping is having on town centres and probably even out of centre sites…?
  • Making effective use of land has been added to the definition of the environmental arm of the principles of sustainable development, as described in chapter 11 and which emphasises efficient use of land and achieving appropriate densities in the right circumstances.

At six years old and after a number of Ministerial Statements, the NPPF is clearly due for review.  The draft proposals are not as radical  as the White Papers, particularly the robustly worded ‘Fixing Our Broken Housing Market’,  but there are still some significant changes and changes of emphasis.

 

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