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National Planning Policy Framework (NPPF) Consultation Proposals Released

Karen Jones

Partner Karen Jones, head of our Planning & Environmental team, outlines the National Planning Policy Framework proposals that have been released.

The Government have released their consultation proposals for amendment to the National Planning Policy Framework. Their aim is to provide for the country radical lasting reform that will allow more homes to be built. The revisions to the NPPF to assist in that, incorporate reforms to planning policy trailed in the 2017 white papers “Fixing Our Broken Housing Market” and “Planning for the Right Homes in the Right Places” which together with the budget of 2017 proposals to change planning policy and legislation to bring forward more land and a encourage a more active Homes England to diversify the market, are to drive the Government’s ambitions.

The draft text for consultation provides much food for thought and contains some significant changes.

Changes to the provisions dealing with the presumption in favour of sustainable development are said to be intended to improve the application of the presumption by addressing aspects that have been subject to litigation about their scope or meaning. It is still said to be “at the heart of” the Framework but the reference to the “golden thread” appears to have been deleted.

The new paragraph 11 (to replace paragraph 14 which was subject to detailed scrutiny in the Court of Appeal in the case of Barwood Strategic Land v East Staffordshire Borough Council [2017]) seeks to apply a presumption in favour of sustainable development for plan making by incorporating the necessity of providing, as a minimum, for objectively assessed needs for housing and other development. A separate draft methodology to calculate the housing delivery test will feed into this requirement. Plans are required to be sufficiently flexible to adapt to rapid change.

For decision making the requirement is to approve development proposals that accord with an up to date development plan without delay. Paragraph 12 makes it clear that the presumption does not change the statutory status of the development plan as the starting point for decision making. Previously stated policy changes in Ministerial Written Statements relating to neighbourhood plans and protections introduced for those plans where an LPA cannot demonstrate a five year housing land supply have been incorporated into the draft text at paragraph 14.

The text purports to set out the weight that may be given to policies in emerging plans (previously covered in Annexe 1 relating to implementation of the original framework). Paragraph 48 acknowledges the legal position of the supremacy of the development plan. It also reinforces the Government’s desire for decisions to be made as quickly as possible and within statuary timescales unless a longer period has been agreed by the Applicant in writing. The new paragraph 49 sets out the weight to be accorded to relevant policies in emerging plans and gives specific guidance on prematurity issues stating that arguments that an application is premature are unlikely to justify a refusal of Planning Permission other than in the limited circumstances outlined in paragraph 50 which are that it would undermine the plan making process by predetermining decisions about scale, location or phasing of development, central to an emerging plan and the emerging plan is at an advanced stage even if not formally part of a development pan. This approach to prematurity has been given greater status having previously been contained in national planning guidance.

The specific policy requirement to keep planning conditions to a minimum is not entirely unexpected given the recent publicity about pre-commencement conditions and the government’s rhetoric that conditions are slowing down the development process. Section 100ZA (4-6) of the Town and Country Planning Act 1990, once it comes into force, will require the Applicant’s written agreement to the terms of a pre-commencement condition. This coupled with the requirement in paragraph 56 of the draft text to keep planning conditions to a minimum may tie the hands of local planning authorities to the detriment of their area by not allowing them to control effectively by the use of conditions proposals that would otherwise be unacceptable.

The draft text also deals with delivering a sufficient supply of homes. It is notable that the restrictions on affordable housing tariffs for sites of 10 units or less, originally introduced in the Written Ministerial Statement of 2014 and at that time challenged in the Courts by Reading Borough Council and other LPAs, is reintroduced at paragraph 64 of the consultation text. It will be interesting to see if these proposals remain as proposed given this provision has already caused significant controversy and resulted in protracted litigation.

Other areas of interest will be subject to separate briefing notes in due course and include provisions relating to small sites, local authority statements of common ground and transport.

For further information or legal advice, please contact Karen Jones or a member of our team.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.