The keenly awaited draft National Planning Policy Framework (NPPF) was published in July 2011 for consultation until 17 October 2011. There were few surprises for those who had reviewed the earlier leaked version and the draft prepared by the Practitioners' Advisory Group.
The task of the draft's authors was to condense over 1,000 pages of national planning guidance into a single, short document and at the same time help deliver the Government's vision for a positive planning system promoting sustainable growth and jobs. The first aim has certainly been achieved - the draft NPPF is less than 60 pages - but whether it can deliver the Government's vision is more difficult to answer. In this article, we set out and consider the principle features of the document and, in doing so, go some way towards answering that question.
- As we explain above in our Introduction, the period since the Coalition came to power has witnessed a significant shift in Government policy as Secretary of State Eric Pickles' localism agenda appears increasingly to have been overtaken by the need to stimulate the economy. The Government's top priority now, it appears, is to promote sustainable economic growth and jobs, and this is an aspiration that shines through the draft NPPF.
- The document therefore reflects and promotes a real change in mindset. It urges authorities to plan positively for new development, to adopt "yes" as the default answer to development proposals and to approve all individual proposals "wherever possible" and "wherever it is practical to do so". This intention is welcomed by the development industry.
- At the core of the draft NPPF - described by the Government as a "golden thread" running through it - is a general "presumption in favour of sustainable development". The concept of "sustainable development" is defined broadly in the draft; as is to be expected, it is about achieving balance. For example, land made available for growth must be not only "sufficient" in amount, but also of the "right type" and in the "right places". A presumption in favour of sustainable development is not simply a presumption in favour of any development.
Linked to this is a requirement on LPAs to prepare flexible Local Plans to meet objectively assessed development needs, and to incorporate the presumption into those plans. Compliant proposals must be approved without delay. Helpfully, permission should also be granted where plans are "absent, silent, indeterminate or where relevant policies are out of date". These requirements will apply unless the adverse impacts would "significantly and demonstrably" outweigh the benefits when assessed against the draft NPPF.
This presumption is likely to act to the advantage of developers in many cases, particularly where LPAs have delayed bringing forward plans. Similarly industry professionals will be careful to look for opportunities to argue that plans are "out of date" and so to attract support of the presumption. Inevitably, however, the balancing act at the heart of the definition of sustainable development will lead to arguments about the extent to which particular developments can be said to be truly sustainable. Early appeal decisions indicating the Government's stance on the definition will be eagerly awaited before being carefully scrutinised.
- The draft Framework introduces ten core planning principles. These reinforce the plan-led and pro-active approach, but again reflect the need for balance in terms of environmental impact. The ten principles cover familiar themes, including environmental and heritage protection and enhancement, the effective use of land, the reuse of existing resources, focusing growth in sustainable locations and securing a good standard of amenity.
- There is a move away from the previous Labour Government's local development frameworks. LPAs are instead urged to produce a single "Local Plan", reviewable in whole or part, and to be kept up-to-date. Additional development plan documents and supplementary planning documents are discouraged. The Local Plan should contain strategic priorities, preferably for 15 years, and allocate sites giving appropriate detail on form, scale, access and quantum of development.
The burden of preparing a Local Plan and its evidence base has always been considerable. A requirement to include all policies in the same document will not lighten the load. LPAs have historically struggled with timely plan preparation. The Government would be well advised to produce clear guidance on the approach and level of detail to be contained in the new local plans if substantial delays are to be avoided.
In addition, this shift away from the existing LDF system will require legislative change. (Draft regulations were recently published for consultation, in respect of which see elsewhere in this Bulletin.) A transitional approach is envisaged - the draft contemplates LPAs seeking certificates of conformity with the NPPF rather than engaging in complete rewrites. In practice, however, even LPAs with adopted core strategies often subsequently work on further development management plans or site allocation DPDs in such as way as would fall foul of the proposed obligation to include all policies in a single document. It remains to be seen whether in practice much reworking of core strategies will be required to meet NPPF requirements.
- The relationship between Local Plans and the Neighbourhood Plans (NPs) proposed by the Localism Bill raises further questions. The language of the draft is unhelpful in places - there are references to Local Plans "incorporating" and "including" NPs, suggesting a misunderstanding of the arrangements proposed in the Bill. The requirement in the Bill for NPs to be in general (rather than strict) conformity with strategic polices of the Local Plan is reinforced. Where there is conflict, the NP will take precedence and, indeed, will be entitled to promote more development than the Local Plan requires. So, even where their sites are allocated in a Local Plan, developers will need to monitor NPs carefully.
LPAs are encouraged to avoid duplicating non-strategic policies dealt with in NPs. However, because NPs will inevitably come forward on an ad hoc basis as and when Parish Councils decide to get involved or neighbourhood forums are created, it will be difficult for LPAs to avoid this. How will they determine what detailed matters should be addressed in their Local Plans without knowing what NPs will be produced over the lifetimes of those Plans?
- Local Plans will be required to identify a rolling supply of deliverable sites for 5 years against objectively assessed housing needs plus an additional 20% to ensure competition and choice. The draft Framework suggests that planning permission should be granted where policies are out of date, for example where an up-to-date five year supply of deliverable sites cannot be demonstrated. A question remains whether LPAs will be entitled to refuse consent on oversupply grounds in situations where an existing 5 year supply can already be shown, or where the application in question will deliver homes in significant numbers beyond the 5 year period.
- The need for development to be deliverable, and therefore viable, is reflected throughout the draft. Development should not be subjected to obligations and policy burdens that threaten viability; the cost of such requirements should be such to ensure that development provides acceptable returns to willing landowners and developers. Again, this is a welcome introduction of commercial realism into the planning policy framework.
- Economic growth and development is to be a clear priority. The town-centre-first, or "sequential" approach remains. However, there is also emphasis on retail and leisure needs being met in full and not compromised by site availability issues. Overall, the broader expression of policy in the draft Framework, together with the removal of the regional tier of town centre planning, may provide opportunities for retailers, particularly those with trading formats previously limited to larger centres.
- Sustainable transport must be promoted. In considering applications, developers must demonstrate the take up of opportunities for sustainable transport modes, safe and suitable access for all and the adoption of cost effective network improvements to limit impact. Subject to those factors, a refusal on transport grounds is discouraged unless the residual impacts are "severe" - a test that will be unwelcome to those objecting to development.
- There is guidance on the statutory duty to co-operate included in the Localism Bill. Collaborative working on cross-boundary strategic priorities must be reflected in Local Plans and demonstrated on their submission for inspection. It will be for the Inspector at examination to determine whether the resulting Plan is sound.
- Localism is not entirely ignored. Indeed, many developers will be concerned to see the introduction of a policy allowing local communities to identify land as "Local Green Space" in Local Plans and NPs. This is likely to result in protection akin to that in PPG 2 on the Green Belt, thus preventing development other than in exceptional circumstances. This new designation will be available where the green space in question is reasonably close to a population centre, is demonstrably special and of local significance (due to its beauty, historic importance, recreational value, tranquillity or wildlife richness), is local in character (ie not extensive) and is not Green Belt. This will add an extra weapon to the armoury of those seeking to resist development whose arsenal already includes the town and village green legislation.
Broadly speaking, the high-level and pro-growth approach of the draft Framework has been welcomed by the development industry. But can the raft of existing guidance simply be swept away without impact? The list of documents to be cancelled when the NPPF comes into effect is curious. It includes the expected PPGs, PPSs and MPGs, but of the Circulars, only Circular 05/2005 on planning obligations is to be cancelled. Therefore, other Circulars and guidance documents will remain in place as material considerations for the moment, but presumably to be reviewed in due course, raising questions as to their status in the interim and whether LPAs may feel it necessary to incorporate more detail in their Local Plans to fill potential policy voids.
There are also important detailed issues that warrant coverage in national policy rather than being left to individual LPAs, and in relation to which there is no reference in the draft Framework. For example, Circular 05/05 on planning obligations is to be cancelled, whilst the draft simply reiterates the tests now found in legislation. The industry has for some time been lobbying for guidance on the use of section 106 obligations where site assembly is not complete by the time permission is granted. This is one area in particular where detailed guidance would be firmly welcomed.
In conclusion, we consider the draft NPPF to be a strong starting point. There must now be a period of comprehensive consultation with careful consideration given to a number of matters in particular, including how the NPPF will fit alongside Local Plans and NPs, and what additional policy and guidance is required to give both developers and LPAs a realistic level of certainty.