Comment on the National Planning Policy Framework

London 28 March 2012, After months of hype and hysteria in the broadsheets about changes to our planning system which would herald the building over of much of this ‘green and pleasant land’ by rampant and out-of-control developers, the National Planning Policy Framework (NPPF) has finally been published.

The document focuses on the issues of sustainable development, house-building and development plans, however at Carter Jonas our feeling is that the much anticipated NPPF is couched in ambiguous language that detracts from the meaning and certainty most respondents were seeking. Eric Pickles’ proclamation that he would end the lawyers’ jamboree could hardly be further from the truth.

These are our thoughts on some of the key topics and what it means for you.

Presumption in favour of sustainable development

This ambiguity is writ large on page 2 and the approach is expanded on page 4, but sadly not properly explained. Although reference is made to the UN General Assembly and the general approach set out in the UK Sustainable Development Strategy, a single concise definition of sustainable development is absent. Why? Given this is the fundamental basis of the new system, it is astonishing that a clear and concise definition is not provided.

In reaching a decision on a planning application that accords with the development plan, this should be made ‘without delay’ – whatever that means – and to those proposals where the development plan is absent, silent or out-of-date, permission should be granted (noting there is no suggestion of this being without delay), unless the impacts of doing so would significantly and demonstrably outweigh the benefits.

Our current planning system already operates on the basis of some form of cost benefit analysis with planning permission being granted where the benefits outweigh the harm, so on the face of it, the much-heralded change to our system seems to be nothing new at all.

This is one area where we see clarity having to be provided by appeal decisions and handed down through case law, until and unless further guidance is provided by the Government. If the latter were to have to occur, then one of the purposes of this exercise – condensing 1,100 pages of planning guidance into 59 – would immediately start to reverse.

Brownfield land vs Greenfield

There is encouragement to develop on brownfield land (para 17), but there is no sequential approach which might have been expected given the concerns of the ‘greenfield’ lobby.

There is also the caveat that brownfield land with ‘high environmental value’ – who decides? – is exempt from this encouragement. This guidance is likely to prove rather meaningless.

In assessing the development potential of greenfield land, guidance is provided that authorities should have regard to the quality of the land, suggesting that some form of sequential analysis may be applied, with the preference being for development on poorer quality first (para 112). It will be interesting to see if this is applied in practise by authorities.

Plan led system

The role of the development plan is re-affirmed (para 11), although disappointingly it simply suggests that “it is highly desirable that local planning authorities should have an up-to-date plan in place” (para 12). Surely one of the fundamental failings of our system over the last 20 years is the absence of national coverage of up-to-date development plans providing the foundations for decisions to be made in accordance with the development plan; so suggesting that having an up-to-date development plan is desirable sells the whole review short? Why not try mandatory.

The time period of a development plan used to be 15 years, now it is “preferably 15”. Why the vagueness?
With the threat of developers and landowners winning on an appeal if they can prove the proposal is sustainable and the development plan is absent, silent or out-of-date – notwithstanding our view that the failure to define sustainable development will hold back some appeals – local authorities are concerned about this and are urgently pressing ahead with the preparation of development plans. There is real urgency to this exercise as more than half of authorities in England do not have an up-to-date development plan in place and they will be desperately seeking to remedy this.

There will be much to monitor over the next 12 to 24 months. There will be fresh opportunities to consider opportunities for development.

Housing supply

The requirement for a five year supply plus a buffer of five per cent is noted, down from the suggested buffer of 20 per cent in all cases, but who will decide where this can increase to 20 per cent because the authority has shown a record of “persistent under delivery” (para 47). Surely the default in the short to medium term will be five per cent as it will take years to assess whether or not an authority has “persistently” failed to deliver? We don’t see this guidance leading to a material increase in the supply of housing land as we see authorities’ sticking with the minimum, especially as they can now include windfall sites (see below).

In terms of identifying a longer term supply of housing land, PPS3 had a requirement for “at least 15 years” and this is now down to “where possible for years 11-15”. This seems to us to be a clear victory for The Anti-Development lobby and a defeat for those attempting to secure a clear supply of housing land because instead of planning positively for at least 15 years, authorities’ forecasts will be allowed to fade away. This must inevitably reduce the supply of housing land.

Unhelpfully an assessment of the supply of housing can now include windfall sites where there is “compelling evidence” these will be “consistently available” (para 48). This contrasts with PPS3 that did not allow windfalls to be taken into account in the first 10 years because it was known that their supply could be so inconsistent.

Change of use from offices to residential

One of the more controversial proposals in the draft NPPF was to allow change of use from offices to residential. Some leading planning authorities opposed this change – the City of London and the City of Westminster – and the proposal is significantly diluted. Authorities are encouraged to “normally” approve applications for this change (no automatic right to change), where there is a “need” (who decides on the need?) and there are not strong economic reasons why the development would be inappropriate (such as concerns over loss of offices). The use of the word normally in planning policy was removed years ago because its use really was a lawyers’ charter – define normal – so its re-introduction is a step backwards.

Green Belt

Relief all round. It is still there and afforded protection from development except in “very special circumstances” and for boundaries to be changed only in “exceptional circumstances”.

One rather odd exception may have crept in. Development brought forward under a Community Right to Build Order could be permitted. So a small residential development that is permitted in the Green Belt to fund new community facilities such as a village hall or allow a pub to be retained (an example of Localism in action with bottom-up support?) could be permitted. We can see this potential loophole being tested very quickly.

Employment land

With regards to the long term protection of employment sites, it advises that where there is “no reasonable prospect” of that use that applications for alternative uses should be treated “on their merits” (para 22). Appeal decisions and the Courts will no doubt provide the evidence of what is, or isn’t, a reasonable prospect, especially in these challenging economic times with no apparent return to strong economic growth forecast to happen any time soon.

Duty to co-operate

This is generally positive but it is unrealistic to expect authorities to address and resolve sub-regional issues without a framework. Time to reconsider the abolition of Regional Spatial Strategies?

Weight to be attached to the NPPF

Whilst it is clear that the Framework applies from 28th March, the 12 month transition period is confusingly argued and how to manage conflict thereafter is expressed in vague terms. The implication is that emerging development plans will be consistent with the NPPF and existing ones will be updated / rewritten to become consistent with the NPPF, and therefore all planning decisions will be made in accordance with the NPPF. Eventually. It is what happens in the interim that will be interesting and this is where we see appeal decisions and decisions of the Courts potentially playing an important role.

What did they get wrong?

In summary, the Government:

(a) has failed to explain clearly and concisely what sustainable development is
(b) has failed to be absolutely clear on whether brownfield land is prioritized over greenfield land
(c) should have made it mandatory for authorities to have a development plan in place. How can you operate a plan-led system without one?
(d) should have provided clarity on housing supply. Operating between five per cent and 20 per cent is far too vague. The decision to allow windfalls to be included will be regretted
(e) has missed an opportunity to allay the concern that the presumption in favour of sustainable development could be interpreted, depending on your standpoint, as conflicting fundamentally with Localism

What should they do next?

As we can’t see the NPPF being updated soon – that would be an admission of failure – the Government will let appeal decisions and the Courts interpret the NPPF. This will take time. In the short term, there are two major changes that should be considered.

First, to allow LPAs to charge locally set rates for planning applications. The real challenge facing the planning system is the shortage of officers in development control and policy and without adequate funding, this won’t change.

Second, bring back regional planning and housing targets if they are serious about this resulting in growth.

Whilst the former may happen, the latter is some way off and may only happen with a change in Government and/or the failure of Localism to deliver meaningful housing development.