Comments on the new Draft NPPF
The new NPPF Consultation Documents
The Presumption in favour of Sustainable Development
Plan-Making - Plan formats and timescales
Plan-Making - Tests of Soundness
Viability Testing in Plan Making and Decision Taking
Decision-Making - Emerging Plans and Prematurity
Delivering Housing - Land Supply and Delivery
Making Effective Use of Land
The new NPPF Consultation Documents
The Government opened their consultation on the proposed changes to the NPPF on Monday 5 March and will close at 23.45 on Thursday 10 May 2018.
Alongside the NPPF the following supporting documents were also issued for consultation:
- Draft planning practice guidance for viability
- Housing Delivery Test: draft measurement rule book
- Reforming Developer Contributions: looking at options to revise the CIL Regulations to more effectively deliver infrastructure through CIL contributions and s106 obligations.
The Presumption in favour of Sustainable Development
The presumption in favour of sustainable development remains at the heart of the NPPF.
However, with regard to Plan-making, the "presumption …" (paragraph 11) has been amended to make clear that that meeting development needs not only relates to need within the Plan areas itself, but also any unmet need from adjoining areas. As with other changes to the NPPF regarding the need for joint working, this requirement is likely to lead to more Local Authorities working together to put in place joint Local Plans or joint strategies. In the short term some existing Local Plan preparation may be disrupted.
The three roles (now "objectives") of sustainable development in paragraph 8 remain, in essence, the same (with an extra emphasis on making effective use of land under the environmental objective), but helpfully the new wording at paragraph 9 makes clear that the sustainability objectives are not criteria against which planning applications are to be judged, a tendency that had started to arise and was leading to unnecessary complexity in decision making. Rather, the sustainability objectives underpin the policies in the Framework and will underpin Local Plan policies, so where proposals comply with relevant policies, there is no need for a separate assessment against the NPPF sustainability objectives.
The text at paragraph 8 still refers to the need for all three objectives to be pursued in mutually supportive ways, which appears to ignore the practical issues with this identified in Mr Justice Jay's decision in Cheshire East BC vs SoS and Renew Land which identified the inevitable trade-offs that occur between these objectives, but the clarification that objectives are not themselves relevant to decision making at the application stage should reduce the extent to which that issue will arise in practice.
Plan-Making – Plan formats and timescales
Every few years the Government of the day takes a different view on whether it's better to have a single Local Plan or a myriad of documents of different types, depending upon whether the drive is for simplicity or flexibility.
The new NPPF is likely to be taking us back to two Plans in many cases, with the new text at paragraphs 17 to 19 stating that each Council should have as a minimum a Strategic Plan, covering a set of specific topics regarding the development strategy and related infrastructure and environmental issues (as set out in paragraph 20). Other policies (presumably mainly Development Management policies) can then be set out in a second Local Plan, and in Neighbourhood Plans.
Although the Strategic Plan can be produced by a single Local Authority working alone, the need for plans to take in to account unmet need from neighbouring areas and deal with broader strategic issues that are likely to be cross-boundary means that they are likely to be produced through joint working, following examples of such practices that are already becoming more prevalent.
A return to strategic plans and encouragement for joint working are a further sign of a recognition that the 'duty to co-operate' has not in the past been effective. The requirement for the outcomes of the "duty …" to be reported and kept up to date in one or more "Statements of Common Ground" (paragraph 29) appears to be largely a cosmetic rather than substantive change, and the real test will be the extent to which hard pressed Councils in areas of substantial development pressure are able to agree amongst themselves how unmet need may be reapportioned.
The new NPPF encourages more frequent Plan reviews – Plan policies should be "reviewed" at least once every five years (not necessarily changed is they are found to be appropriate, and there is nothing to suggest such reviews need to be independently assessed), but strategic plans/policies should be updated "at least once every five years if their applicable local housing need figure has increased" (paragraph 23).
The new NPPF states that Plans should have a strategy that will meet the area's need for development for "a minimum" of 15 years (previously there was a preference for 15 years). This would mean that when Plans are subject to their quinquennial review, they will always need to be rolled forward to take in to account additional growth needs, and inevitably Plans that need to accommodate additional development take longer to prepare than Plans in which just policies are being reviewed. As in the past, therefore, achieving quinquennial reviews is easier to say that achieve, notwithstanding the fact that this is now a legal requirement under amendments to the Local Planning Regulations that will come in to force in April 2018.
Plan-Making – Tests of Soundness
In terms of Plan 'tests of soundness' (paragraph 36), the amendment to the "Effective" test to introduce a need to demonstrate that cross boundary issues have been "dealt with rather than deferred" is helpful and will hopefully remove one of the issues that sometimes leads Inspector's to find Plans sound on the basis of the ever optimistic "early review" get-out.
The change to the "Justified" test to amend the relevant consideration to being whether the Plan has achieved "an appropriate strategy" rather than "the most appropriate strategy" is sensible and reflects the way the test seems to be applied in practice by Inspectors.
The changes to the "Positively Prepared" test to make clear that the objectively assessed need for housing should be considered as a "minimum" is rather diluted by the reference to strategies meeting "as much as possible" of that minimum requirement, in the same way that the requirement to meet unmet need from adjoining areas is caveated by the need for this to be done "where it is practical to do so and is consistent with achieving sustainable development".
Viability Testing in Plan Making and Decision Taking
A key change heralded by the new NPPF, and explained in more detail in the accompanying consultation document setting out Planning Practice Guidance changes, relates to viability assessment. Paragraph 34 of the draft NPPF makes clear that Plans will need to set out clearly all contributions that will be required from new development, both in relation to contributions from "particular sites" and from "types of development". This in turn will lead to viability appraisal being front-loaded to the Plan making process to negate the need for viability testing at the application stage. There are potentially many difficulties with this approach, including but not limited to:
- Issues arising from potentially having two different plans and with policies in a subsequent Local Plan affecting the viability of sites in a Strategic Plan by introducing new design requirements;
- The level of detail that viability testing at the Plan making stage can go in to, taking in to account both the fact that detailed schemes will not have been agreed at that stage, nor all relevant site technical work (such as remediation) undertaken;
- The amount of Examination time that will be taken up by detailed viability appraisal matters, potentially on numerous individual sites, and the suitability of the Examination format for dealing with such matters;
- The front-loading of costs in terms of viability appraisal at the Plan-making stage, in advance of any certainty that land will be allocated;
- The speed with which appraisal assumptions become out-dated, and therefore the extent to which that assessment work will be robust at the application stage anyway.
The front-loading of viability appraisal to the Plan making stage is clearly intended to provide greater openness on the appraisal process and reduce the scope for developers to test viability later in the development process, but whether this approach will achieve that or be deliverable in practice remains to be seen.
Paragraph 58 states that where proposals accord with planning policies, no viability appraisal should be required – a statement that should be self-evident. However, paragraph 58 goes on to state that where a viability assessment is needed (and the accompanying viability consultation document makes clear the Government sees this as only being relevant where circumstances have changed since the Plan viability assessment was undertaken), then that document should be made publically available. The consultation document elaborates upon the lack of need for confidentiality on the basis that the appraisal should be primarily based on a standard methodology with standard inputs, rather than site specific or commercially sensitive information.
Decision-Making – Emerging Plans and Prematurity
Paragraphs 49 and 50 bring previous guidance from the NPPF Annex regarding the weight to be given to emerging Plans and previous guidance on prematurity in to the main text of the document, but do not materially alter the substance of policy, which is that emerging Plan can have weight depending on the stage of preparation and existence of unresolved objections, and that prematurity will rarely be a reasonable ground on which planning permission should be refused.
Delivering Housing – Land Supply and Delivery
The new NPPF seeks to make clear at paragraph 61 that the new standard methodology is to be used to determine local housing needs (unless there are "exceptional circumstances").
Helpfully, the new NPPF also notes at paragraph 66 that strategic plans should set housing requirements for designated neighbourhood areas, so that Neighbourhood Plans can proceed within a clear policy framework. The reference only relates to "designated" neighbourhood areas, so would presumably not 'catch' areas that become designated after a strategic plan has been prepared, but only those previously in existence.
In support of smaller housebuilders, paragraph 69 states that Councils should ensure that at least 20% of sites "identified" for housing in their plans are of half a hectare or less. The use of the word "identified" suggests that these would need to be specific allocations, rather than simply allowed for as part of windfall assumptions. We would also assume that the 20% would relate to the overall number of units being allocated through the plan, rather than relating to the actual number of allocations. The consultation document states that the Government is very much open to views on both the percentage and other issues surrounding this matter.
The need for Local Planning Authorities to maintain a 5 Year Land Supply remains an essential part of housing delivery policy. There are two principal changes:
- The introduction of a 10% buffer as an alternative to the standard 5% buffer where a Council wishes to take advantage of a new provision that enables them to prepare an Annual Position Statement, which would then allow them to demonstrate that a 5 Year Land Supply exists. However, preparing an Annual Position Statement requires the Council to consult with developers and other stakeholders, submit the document to the Secretary of State, and act on any recommendations for changes by the Secretary of State, before that Statement would come in to effect. Bearing in mind most Annual Monitoring Statements are produced 12 months after the year end, and given the time involved in going through the preparation process, it is questionable as to how up to date a Position Statement might be at the time it comes in to effect, and assuming that the Statement would have to be renewed annually, it is uncertain at the moment as to how much extra clarity this innovation will provide;
- The introduction of a Housing Delivery Test, full details of which are set out in the supplementary consultation, and which envisages a stepped introduction of the Test leading to the "Presumption …" applying where housing delivery falls below 75% of the housing requirement from 2020.
A body of case law had built up around the phrase "… relevant policies for the supply of housing …" which is used in paragraph 49 of the current NPPF in the context of the triggering of the "Presumption in favour …" in the absence of a 5 Year Land Supply. Paragraph 49 has been superseded by the new text relating to 5 Year Land Supply and the Housing Delivery Test, and that phrase is not used in the draft text.
New paragraph 72 provides an important change, enabling the potential for "entry level" market housing (e.g. Starter Homes) on unallocated sites outside existing towns and villages as an exception to normal policies.
It is important to note that under the transitional arrangements, Plans submitted for Examination in 2018 will be tested under the existing NPPF, and therefore the new requirements for small site allocations and the new standard housing methodology would not apply. However, other requirements in relation to 5 Year Land Supply, the Housing Delivery Test would still apply, and the paragraph 72 exception for Starter Homes would apply.
Many headlines have focussed on the steps the Government would take to ensure housebuilders do not 'landbank'. In the event, paragraph 78 provides two measures, which are:
- A suggestion that Councils may use shorter time periods for implementation than the standard 3 years (some do already where permission is being granted on the basis of 5 Year Land Supply), but there is no requirement for Councils to do so and the basic tests for the reasonableness of conditions remains unchanged;
- Considering previous 'track record', but only in the limited and normally rare circumstance of an application to reapply for the same form of development on the same site where the previous consent hasn't been implemented (i.e. effectively a renewal).
There are important changes in the new NPPF regarding affordable housing. Firstly, the Glossary definition of affordable housing has been extended to include both Starter Homes and Discounted Market Sale, and other a further category of "affordable routes to home ownership" which includes "other low cost homes for sale" as well as shared ownership, all in addition to affordable rent.
New paragraph 65 states that on major development sites, it is 'expected' that 10% of homes should be "affordable home ownership", and whilst that term itself is not specifically defined, it presumably relates to the widened definition of affordable housing described above.
Since this 10% forms part of the overall affordable housing requirement, the implication is that in the future, affordable housing will contain a broader mix of affordable housing types with a much higher proportion of affordable home ownership and much lower proportions of rented accommodation. This would be particularly the case in the short term, where 10% affordable could represent perhaps one third or a half of the entire affordable housing requirement, assuming current policies of typically 20-
30% affordable. In the longer term, as Councils bring forward new affordable housing policies, it is likely that where affordable housing requirements have been supressed due to viability concerns, the increased viability arising from the introduction or more home ownership products would lead to higher affordable housing requirements.
The new NPPF text on rural housing has been expanded to include a specific reference to Plans identifying opportunities for villages to "grow and thrive" (paragraph 80), and also acknowledges that meeting community and business needs in rural areas may mean using sites outside settlements in locations where there is limited public transport (especially where development may improve
For sites outside villages, new paragraph 72 relating to "entry level exception sites" and which will facilitate Starter Homes in rural areas will also be of great significance, assuming the current wording remains unchanged in the final draft.
Making Effective Use of Land
Section 11 of the draft NPPF is new, and seeks to emphasise the need for policies and decisions to make best use of available development land. Measures include:
- "upward extensions" using the airspace above both residential and commercial properties (but only where "consistent" with the prevailing height and form of neighbouring properties and the overall street scene, and only where creating new homes);
- Making optimal use of the potential for all development sites, such as those in locations well served by public transport (albeit curiously this statement is linked only to situations where that is a housing shortfall, when it should be a policy objective regardless of land supply);
- Providing support for alternative usage of existing land or allocations where there is "no reasonable prospect" of the existing allocated use occurring (a more positive stance than the existing NPPF reference to such applications being treated on their merits);
- Strengthening the ability of Councils to refuse planning permission for developments that they consider fail to make efficient use of land, which could lead to Councils seeking tighter urban forms or smaller house types to maximise site yield.
In an apparent contrast to optimising development land, paragraph 107 seeks to dissuade Councils from setting maximum car parking standards, except where there are compelling highway management issues.
Not surprisingly, the general thrust of Green Belt policy remains unchanged, subject to some specific amendments, including:
The above is not an exhaustive list of changes, but represents a commentary on some of the more significant implications. Clearly the draft text may be subject to changes before the final revised NPPF is published, expected in the early summer.
- Where land needs to be released from the Green Belt, there is now a specific reference to using previously developed land and/or land in locations well served by public transport;
- A more flexible approach to the "openness" test where development involves affordable housing on previously developed land. With the wider definition of affordable housing, this could lead to greater scope for, say, Starter Homes on previously developed Green Belt land.