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Legal Viewpoint: Framework offers clarification, simplification and focus on homes delivery

Mon, 30 Jul 2018

Three of the main issues the revised National Planning Policy Framework (NPPF), published on Tuesday, is designed to address are the numerous high-profile court judgments on issues of interpretation, the need to simplify housing requirements and the imperative to achieve quicker delivery.

The new NPPF is designed to resolve issues that litigation has brought sharply into focus. It brings welcome clarification on a whole range of policy interpretation issues that have troubled the courts on an almost weekly basis. One concerned the ambiguity over paragraph 49 in the March 2012 edition, tested in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates Partnership LLP v Cheshire East Borough Council [2017].

Another is the confusion that has reigned for six years over some aspects of the text, such as what is included in the list of specific restrictive policies identified in footnote 9 of the old framework. The thorny issue over valued landscapes was finally clarified last week in CEG Land Promotions II v Secretary of State for Housing, Communities and Local Government. 

The second issue arises from the complexity of setting a housing requirement, both in the context of local plans and appeals. After 15 rounds of litigation, going back to Hunston Properties v Secretary of State for Communities and Local Government and St Albans City and District Council [2013], the search for the correct way of measuring objectively assessed need remained opaque. Now we have a new, simple standard methodology that will come as a relief to planning inspectors everywhere. 

Also welcome is the government’s recognition that its approach to the standard methodology will result in 80,000 too few homes a year. Ministers have promised to review this in the autumn. The government has been right to issue this health warning alongside the new NPPF, because otherwise it will mean less houses overall – which would be a complete own goal for a government keen to talk the language of a housing crisis. What needs to happen is a rapid return to the Local Plans Expert Group’s version of the standard methodology. 
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The third issue is the real meat of the NPPF. The new version makes a two-pronged attack on the delivery of new homes. First, the glossary adopts a new definition of "deliverable" to replace the previous version’s footnote 11. This moves away from the benevolent interpretation of "deliverable" favoured by the Court of Appeal in St Modwen v Secretary of State for Communities and Local Government and East Riding of Yorkshire Council  [2017] and tightens it up in line with the view taken by Lord Gill in his judgment on the Suffolk Coastal and Richborough cases, where he emphasised "the futility of authorities relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five-year period". The second is the very welcome new housing delivery test, which will make a real difference to delivery and the prospects of success for speculative development proposals. 

Christopher Young QC
Planning & Environment Group


This article originally appeared on https://www.planningresource.co.uk/article/1488917/legal-viewpoint-framework-offers-clarification-simplification-focus-homes-delivery?bulletin=planning-weekly-edition

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