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NPPF: a useful present

 
Simon Ricketts Author:
Simon Ricketts



Date:
2 April 2012
Bloomsbury Professional will be publishing a book, "Localism and Planning" by Simon Ricketts and Duncan Field, in May 2012. View more details >>

My brother's birthday on 27 March coincided with the publication of the long-awaited final version of the NPPF. Were he a planner or planning lawyer, he may have shown more excitement. As it was, I suspect that, like most of the country, he will have picked up from the news coverage that there was some big Government shake up of the planning system and that this was definitely either a Good Thing or a Bad Thing. We planoraks of course have rarely experienced such rushes of adrenalin as the NPPF gave us, and the tweeters, bloggers and client update writers have been in full flow.

As well as unwrapping the NPPF itself, there is also the Planning Inspectorate's advice for use by inspectors on the NPPF as well as the Government's response to the CLG Select Committee, which sets out the reasoning behind a number of the changes.

What is likely to be the impact of the NPPF and what are the main changes from the draft (commented on in our blog posting #27)?

Likely impact

  1. The real answer is that no-one knows. The changes arising from the document are as likely to be from its unintended effects that are teased out in specific applications, appeals and court challenges as from its intended messages, none of which herald a significant departure from the present policy position.
  2. Whilst there will undoubtedly be appeal decisions and legal challenges that turn on opposing interpretations of the NPPF, predictions of a "field day for lawyers" are off the mark. Every iteration of policy carries that potential. Any book on the subject would have chapters for example on Circulars 15/84 and 14/85 and on PPG6's sequential approach and the successive ministerial clarifications that followed. By reducing the scope for unintentional overlapping between separate Government policies and by reducing the verbiage, over the longer term there should be greater, not less, consensus as to meaning.
  3. However, of course the meaning of the NPPF will soon be teased out, stretched and distorted as decisions of the Secretary of State come though the system showing how the high-level text of the framework is being interpreted politically and applied to specific circumstances. The average planning lawyer may not have to lug around a thousand pages of policy guidance in his or her iPad any longer but will certainly need ready access to those decision letters – as well as the "underpinning guidance" that is promised..

What are the main changes from the July 2011 draft?

These are twenty changes that this planorak finds of interest:

  1. A beefed up definition of "sustainable development", referring (as the CLG Select Committee recommended) to the classic Brundtland report definition and to the five guiding principles from the 2005 UK Sustainable Development Strategy, is set out up front in its own green box. Curiously, the document itself, when referring to "sustainable development" in paragraph 6, does not refer back to the box but instead to subsequent paragraphs of the NPPF itself, which it says "constitute the Government's view of what sustainable development in England means for the planning system".
  2. A new paragraph 10, reiterating the importance of an approach to plan making that is localist, in that local variations are encouraged to take account of place, in the light of criticisms made by the CLG Select Committee: "Plans and decisions need to take local circumstances into account, so that they respond to the different opportunities for achieving sustainable development in different areas".
  3. As recommended by the Select Committee, more of an explanation as to how the NPPF sits within the system. Under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990, applications must still be determined in accordance with the development plan unless material considerations indicate otherwise. The NPPF does not change the statutory status of the development plan for decision making. If we stand back for a moment, we need to remember this before we get too excited about the transitional provisions. If an LPA has an up to date plan, ie largely compliant with the NPPF, that is still the starting point for decision making. Also, it is for the LPA to decide how much weight to attach to the NPPF as a material consideration versus its local plan. The courts will only interfere in exceptional cases, if it can be shown that the weighting was perverse – an Olympic height hurdle.
  4. As recommended by the CLG Select Committee, the removal of the passage in the draft that had advised decision takers to assume that the "default answer to development is "yes" except where this would compromise key sustainable development principles". This probably did risk being interpreted as cutting across section 38(6)/section 70(2).
  5. References to the need for planning to "encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value". Campaigners against the draft NPPF had argued that there was insufficient protection for undesignated areas of countryside. This surely is a big step in that direction. If an LPA is faced with a development proposal on greenfield land, surely the appropriate way to encourage that development coming forward on brownfield land, if that is considered feasible, is to consider refusing the application. There are some who continue to worry away at the point but pinheads and unquantified numbers of dancing angels come to mind I'm afraid. LPAs may "continue to consider the case for setting a locally appropriate target for the use of brownfield land" (the CLG Select Committee had recommended that this should be a requirement rather than optional).
  6. Additional passages in the town centres section that reflect some of Mary Portas' recommendations. For example, there is a thumbs up for "competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres" and for the retention, enhancement and/or creation of attractive and competitive markets. There is also the advice (which is sometimes going to be difficult to balance with other principles of sustainable development) that LPAs should "seek to improve the quality of parking in town centres so that it is convenient, safe and secure, including appropriate provision for motorcycles. They should set appropriate parking charges that do not undermine the vitality of town centres". There is also a great line to use with traffic wardens in paragraph 40 of the NPPF, final sentence: "Parking enforcement should be proportionate". It is heartening incidentally to see that the Government has not fallen hook, line and sinker for some of Mary Portas' other recommendations but that may be the subject of another blog posting (following on from our blog posting #34).
  7. As recommended by the CLG Select Committee, the sequential approach now again applies to all "main town centre uses" ie including offices and hotels. Flexibility needs to be demonstrated on issues such as format and scale – more closely reflecting PPS4. Small scale offices and other small scale rural development is exempt from the sequential approach.
  8. The timescale for assessing impact on town centres is now five years and only ten years for major schemes where the full impact won't be realised in five years.
  9. The draft NPPF required LPAs to identify five years' supply of housing sites plus a buffer of 20%. Now the 20% is only where the LPA has had a "record of persistent under delivery of housing", otherwise it is 5%. What is a "record of persistent under delivery" and what developer won't argue that the relevant LPA has just such a record? As recommended by the CLG Select Committee, windfall sites can be allowed for, where based on "compelling evidence".
  10. Chiming with David Cameron's recent comments about "new garden cities", a new paragraph 52: "The supply of new homes can sometimes be best achieved through planning for larger scale development, such as new settlements or extensions to existing villages and towns that follow the principles of Garden Cities". Are we going to get more guidance on this? It is particularly difficult for these schemes to come forward by way of local plan making, given their cross-boundary implications.
  11. When it comes to design, it is proper for LPAs to "seek to promote or reinforce local distinctiveness". The "visual appearance and the architecture of individual buildings are now not just important factors, they are "very" important factors. LPAs should have local design review arrangements, there should be "early engagement" on design and LPAs should have regard to the panel's recommendations.
  12. There is an intriguing new paragraph which I must say that I don't yet fully understand: "Local planning authorities should not refuse planning permission for buildings or infrastructure which promote high levels of sustainability because of concerns about incompatibility with an existing townscape, if those concerns have been mitigated by good design (unless the concern relates to a designated heritage asset and the impact would cause material harm to the asset or its setting which is not outweighed by the proposal's economic, social and environmental benefits)." If there is still "incompatibility with an existing townscape" despite good design, should the development be permitted?
  13. More detail in relation to flooding and more fine-grain detail in relation to a number of areas such as neighbourhood planning, SSSIs, ground conditions, conservation and minerals. Technical guidance to the NPPF has been published, but only contains further detailed advice on flooding and minerals issues.
  14. Useful passage in relation to noise: recognising that "development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established".
  15. Local plans should be "based on co-operation with neighbouring authorities, public, voluntary and private sector organisations" – that's wider than the statutory duty to co-operate.
  16. Useful passage stating that where safeguards are necessary to make a particular development acceptable in planning terms, the "need for such safeguards should be clearly justified through discussions with the applicant, and the options for keeping such costs to a minimum fully explored, so that development is not inhibited unnecessarily".
  17. Viability: "Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision making" and, where planning obligations are being sought or revised, "local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled".
  18. A neighbourhood plan should not promote less development than is set out in the local plan, or "undermine its strategic policies". Once in place, having demonstrated its general conformity with the strategic policies of the local plan, "the policies it contains take precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict" and LPAs should "avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation". This reflects the CLG Select Committee's recommendations. So a neighbourhood plan may be able to be adopted that conflicts with a local plan's non-strategic policies? One to watch out for.
  19. Annex 1 on implementation, aka the transitional provisions. The central message is that for "12 months from the date of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework". In other cases, and after the 12 month period, due weight should be given according to the policies' degree of consistency with the NPPF. But, aside from the reference to the 12 month period, doesn't this just reflect section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990 in any event? What is "a limited degree of conflict"? And did the draftsman remember that the regional strategies are still technically part of the development plan? Emerging draft policies may be given weight according to how advanced they are, the less significant any unresolved objections are and the degree of consistency to the NPPF.
  20. Annex 3, which sets out the documents replaced by the NPPF, lists all of the PPSs, PPGs and MPGs, Circular 05/2005 on planning obligations, the (former) Government Office for London's Circular 1/2008 on strategic planning in London and a series of letters to chief planning officers. That still leaves a lot of Circulars and practice notes that may still potentially be of relevance and which are unlikely to sit comfortably in every respect with the NPPF. The Government's response to the CLG Select Committee indicated that the Government will "now embark on a new exercise to consider what underpinning guidance continues to be needed. The outcome of this process will be an appropriate and easy to use set of guidance, focussing on issues that require national expression, to support implementation of the Framework. It will not always be the case that the guidance should come from Government – in some cases professional bodies may be the most appropriate bodies to publish guidance. The Government has been clear that until such time as the guidance review is complete, the existing guidance where relevant can still be used".

As Greg Clark says in his foreword, by "replacing over a thousand pages of national policy with around fifty [Greg, you're so modest, you've given us 59 in fact], written simply and clearly, we are allowing people and communities back into planning". Let's not carp too much, fellow planoraks – and please remember to share…