It is hard to escape the fact that our planning system is in the throes of a dramatic reform, given that these proposed reforms have managed to make front page news and been at the centre of many recent debates during the party conference season.
Not only do we have the Localism Bill making its way through parliament (it is expected to receive Royal Assent on 26 November) introducing the ideals of a bottom-up people led approach to the planning system, but combined with this, the Government has published its draft National Planning Policy Statement (NPPF), which looks to “positive planning” and sustainable development to ultimately provide economic growth.
However, the Government’s ideals are not without their consequences. There is a degree of uncertainty surrounding both the Localism Bill and the NPPF, given that they are still in their draft format and also given that many of the finer details of how the Localism Bill will operate will only be fleshed out at a later date in regulations. Plus, we must not forget the months of uncertainty that could follow once these provisions have come into full swing as people challenge and seek clarification on their operation in court. Thus the switch to the new planning regime will not be without its glitches and it is unlikely for some time yet to be able to instil enough confidence in developers for them to bring forward proposals and create the growth the Government desires.
The NPPF has, in particular, already been subject to widespread criticism, most notably from groups with a key interest in protecting the environment, including the National Trust and the Campaign to Protect Rural England (CPRE). This criticism revolves around the introduction of the presumption in favour of sustainable development in paragraph 14 of the NPPF and the fear that it will cause an unacceptable level of unwanted and sprawling development encroaching on unprotected green areas. My concern, however, is how, in the face of vast public spending cuts, local authorities can be expected to ensure their core strategies or local plans are fully up-todate by the time the NPPF comes into force as is necessary for local authorities to truly be able to control growth within their area. Let me explain why this is key.
The presumption in favour of sustainable development means that the default position will be to approve all applications for development wherever possible. In particular, the NPPF states that local planning authorities should “grant permission where the plan is absent, silent, indeterminate or where relevant policies are out of date.”; the only limitation to that being if the adverse impacts of allowing the development would “significantly and demonstrably outweigh the benefits”, when assessed against the policies in the NPPF taken as a whole.
So, local authorities need to take care – if their core strategies or local plans are out of date, there would be an opening for developers to make applications that, in accordance with the presumption, should be approved. But at the same time, local authorities are restricted in the action they can take. The current position for them remains that their local plans must be in “general conformity” with regional strategies in accordance with section 24 Planning and Compulsory Purchase Act 2004. We have already heard from the courts in CALA Homes v Secretary of State for Communities and Local Government (2011) that the Government’s intention to abolish regional strategies is not to be taken into account in the preparation of local plans.
Paragraph 26 of the draft NPPF also makes it clear that it is paramount to have up-to-date local plans that are consistent with the NPPF, in the absence of which, planning applications are to be determined in accordance with the NPPF. It therefore seems inevitable that when regional strategies disappear and with the rapid introduction of NPPF, many local authorities’ plans will be out of date.
There also seems to be a clear shift between the 2004 Act and the NPPF as to what level of conformity is required. The legislation only requires a “general” conformity which was held by the Court in Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council (2005) to introduce a degree of flexibility. This appears to have gone within the NPPF suggesting a more rigid adherence to national policy is required.
There simply does not seem to be enough time for local authorities to make the shift within their local plans from conforming to regional strategies (soon to be abandoned) to ensuring local plans are consistent with the NPPF. On the Government’s own figures in the NPPF impact assessment, in May 2011, 60 per cent of local authorities had a core strategy that was either adopted (30 per cent) or had been found sound by an Inspector (31 per cent); 47 per cent of local authorities had not even published their core strategy. This exposes local authorities to a clear risk on appeal. The problem from local authorities’ point of view is exacerbated further by the fact that the NPPF itself has simplified national planning policy to such an extent that local plans will, in many cases, need to be updated to add locally important elements of former national policy which may otherwise slip through the net.
The Government has acknowledged this issue, with Ministers Bob Neill and Greg Clark apparently promising that transitional measures will be in place to assist local authorities with emerging plans and who have made a genuine effort to ensure their plans are up-todate. However, we do not have any detail of exactly how such transitional provisions will work. Two recent planning appeal decisions also provide us with a glimmer of hope that the Government will back local authorities who are actively seeking to promote the localism agenda by engaging with communities in planning. They rejected both of these appeals which would otherwise have undermined the work that the local authorities were doing towards localism. It is therefore clear that such work towards localism can carry weight in determining planning applications (see the CALA Homes (South) Ltd Barton Farm appeal dated 28 September 2011 and Fox Strategic Land & Property Ltd appeal dated 29 September 2011).
What also remains unclear is how local authorities will be expected to fund the introduction of the planning reforms, given that much time and money will need to be expended in bringing local plans up to date among the other changes to be made. We are still waiting to hear whether the Government will advance proposals to allow local authorities to charge and set their own planning fees which would enable greater investment in their planning services. What is certain is that, without greater resources, local authorities will not be able to meet the opportunities from localism nor rise to the challenges in the NPPF.