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30th January 2012

The National Planning Policy Framework - A Lawyers' Charter?

The Government has embarked upon a radical overhaul of national planning policy which guides the preparation of Local Plans and the determination of planning applications.

 They are intending to replace all existing planning policy guidance and statements and some Circulars with a new National Planning Policy Framework (‘NPPF’). A draft Framework was published by the Department for Communities and Local Government in July 2011. By replacing over a thousand pages of national policy with around fifty, the Government hopes to clarify the planning process and make it more accessible to the general public.

The House of Commons Select Committee for Communities and Local Government published their report on the draft NPPF at the end of December 2011. The report says the draft NPPF ‘does not achieve clarity through brevity’ and risks amounting to a ‘lawyers’ charter’ rather than assisting with practical decision making.

I would agree that the NPPF proposes to dispense with a great deal of guidance that planning professionals currently find useful, which could lead to ambiguity and ‘planning by appeal’ as people struggle to make sense of the policy framework. At the very least, the Government must fulfil its promise to ‘carefully consider the proposed approach’ following the Select Committee report before the NPPF is finalised in April.

The presumption in favour of sustainable development

The NPPF introduces a new ‘golden thread’ in planning decision making - the presumption in favour of sustainable development. Local authorities are encouraged to plan positively for new development, and approve all individual proposals wherever possible. The NPPF states that ‘sustainable development’ should be approved unless the adverse impact of a development would ‘significantly and demonstrably outweigh the benefit’.

In particular, the NPPF provides that local planning authorities should grant permission for developments whenever a Local Plan is ‘absent, silent, indeterminate, or where relevant policies are out of date’. This has given rise to a great deal of concern about the introduction of the NPPF due to the poor coverage of adopted Local Plans. Conservation bodies and others fear that inappropriate or unsustainable development could be imposed on areas without an adequate plan. This, in turn, could give rise to a dramatic increase in the number of legal challenges to development control decisions.

Even those areas currently covered by adopted plans may not escape the uncertainty. As the already-adopted plans do not reflect the changes of policy set out in the NPPF, they may be out of date as soon as the NPPF is adopted. A particular concern is the requirement for plans to identify an additional 20% on top of their 5 year housing land supply.

This has led some to suggest that there should be a transition period before the NPPF takes effect in order to allow local authorities that do not have recently adopted or compliant Development Plan Documents to catch up. The Government has stated that it has always been their intention to put transitional arrangements in place, although no details of those arrangements have yet been spelt out in the NPPF.

The Government has also expressed a willingness to expand and strengthen the definition of ‘sustainable development’ and to revisit key terms, such as ‘significantly and demonstrably’, that are critical to decision making. The Select Committee report on the NPPF called for a ‘clearer, more balanced approach to the presumption in favour of sustainable development’ and, in particular, that the presumption in favour of sustainable development should be replaced by a presumption in favour of sustainable development consistent with the Local Plan. I would agree that a tighter definition is required if the presumption in favour of sustainable development is not to become a key battleground in future planning applications and appeals, or indeed a speedy route to judicial review.

Plan making

The draft NPPF refers to local planning authorities adopting a succinct ‘Local Plan’ for their area, and says that ‘any additional development plan documents should only be used where clearly justified’. However, the Select Committee report has identified a tension between this advice and the need for local authorities, in the absence of national guidance, to produce comprehensive plans tailored to local circumstances. Certainly, it seems inevitable that the reduction in national policy guidance will actually give rise to more voluminous Local Plans as local planning authorities seek to incorporate some of the lost detail from Planning Policy Statements.

There is also uncertainty in terms of the relationship between Local Plans and neighbourhood plans. The NPPF encourages the development of neighbourhood plans in order to ‘give communities direct power to plan the area in which they live’. Neighbourhood plans must be in general conformity with the strategic policies in the Local Plan, although they can promote more development than is set out in the Local Plan. The NPPF goes on to say that neighbourhood plans should take precedence over the Local Plan where there are conflicts. Clearly, there is an ambiguity here as to when Local Plans take precedence and when Neighbourhood Plans take precedence.

Other ambiguities

Currently, national planning policy (PPS3) contains a target for 60% of housing to be on previously developed, brownfield land. This will be replaced by a requirement in the draft NPPF that ‘plans should allocate land with the least environmental or amenity value where practical’. The Select Committee report has highlighted the uncertainty that this gives rise to and the Government has indicated a willingness to clarify their policy stance in this respect.

National planning policy also currently includes a policy of ‘Town Centre First’, whereby sites are identified for development first in existing centres, then in edge-of-centres, and only then in out-of centre locations. The draft NPPF has been criticised for weakening this requirement by guiding local planning authorities to ‘prefer’ rather than require applications in town centre locations, and qualifying this by adding ‘where practical’. In addition, office development has been removed from the scope of the policy, and it is not clear whether it applies to arts, culture and tourism uses. The Government has indicated that it will clarify its policy on offices in town centres, but they must go further if they are to promote the vitality and viability of town centres.

Conclusion

The Government’s reaction to the Select Committee report has so far been positive and it is hoped that some of the ambiguities contained in the NPPF will be resolved before the final draft is published. However, there is little doubt that the reduced level of detail in the NPPF means that there will be less certainty over the acceptability of development and more scope for time-consuming and expensive appeals and high court challenges. Much will depend on the local planning authorities quickly bringing forward up to date and comprehensive Local Plans to fill in the gaps and prevent the NPPF becoming a lawyers’ charter.

For more information, please contact Gemma Dudley on gemmadudley@hewitsons.com or on 01223 532747.

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