NPPF Revisions – Spin v Reality

Sun, 04 Mar 2018

1. On Monday 5 March 2018 draft revisions to the NPPF were published. The previous day the Secretary of State gave an interview to the Sunday Times.  One assumes that the paper correctly attributed words appearing in quotation marks.  This short article will take some of the ‘quotes’ and compare them with the draft revisions.   
    

“A revolution in planning laws” “A housing revolution” “Our No 1 domestic priority”
 

1. Was the reference to “laws” intentional?  If so, it can only be achieved by legislating for a ‘presumption in favour of sustainable development’ along the lines of the present NPPPF paragraph 14.  We know from evidence given to the CLG Select Committee during the passage of what became the Localism Act 2011 that this was expressly considered but not pursued at that time.  Perhaps the parliamentary arithmetic did not add up?  Will it now?  Without legislation the statutory primacy of the development plan in s70(2) and s38(6) remains.  As the Supreme Court in Hopkins Homes / Cheshire East put it:
    

“21 Although planning inspectors, as persons appointed by the Secretary of State to determine appeals, are not acting as his delegates in any legal sense, but are required to exercise their own independent judgment, they are doing so within the framework of national policy as set by government. It is important, however, in assessing the effect of the Framework, not to overstate the scope of this policy-making role. The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than “guidance” and as such a “material consideration” for the purposes of section 70(2) of the 1990 Act: see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] 1 P and CR 22 , para 50, per Lindblom J. It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme.”
 

1. Without legislation, the NPPF remains an ‘other material consideration’ but one where weight is for the decision-taker.  Perhaps the Secretary of State intends the NPPF to be given more (or even over-riding) weight by ‘changing the decision-taker’ in circumstances where the development plan is not delivering the housing needed (see further below).  But as Lord Carnwath made clear, inspectors are not the Secretary of State’s “delegates” and are “required to exercise their own independent judgment”.
    
2. The consultation does not include any indication about fresh legislation.
    
3. However, the whole tenor of the consultation does reflect that delivering housing is a very high priority for the government.
    

“If you are in an area where the unaffordability ratio is much higher you will have to build even more. It will be made clear to councils that this number is minimum, not a maximum”

6. There is no doubt but that considering OAN and fixing the housing “requirement” has dogged, bedevilled and seriously extended many a local plan independent examination. The LPEG recommendations and the CLG consultation in late 2017 both advocated a system for arriving at a ‘requirement’ figure that aimed to address this.  Have the draft revisions delivered?

1. The NPPF consultation document states: “Paragraph 61 introduces a new standard method for the calculation of local housing need. The details of the standard method are set out in draft revised national planning guidance published alongside the Framework.”  Unless I have missed something, the detail of the “standard method” has not yet been published.
    
2. Paragraph 61 also includes a ‘get out clause’ in respect of the standard method: “unless there are exceptional circumstances that justify an alternative approach which also reflects current and future demographic trends and market signals. In establishing this figure, any needs that cannot be met within neighbouring areas should also be taken into account.”
    
3. It is not clear whether or not to depart from the standard method is wholly within the purview of the LPA, or whether ‘representors’ at a local plan examination will be able to argue that although the LPA proposes to stick with the standard method “exceptional circumstances” exist justifying an alternative approach.
    
4. Paragraph 11b of the revised NPPF does indeed specify that LPA should plan to meet housing OAN as a minimum.
    

“We are going to be breathing down your neck to make sure you are actually delivering on those numbers”.  “Nimby councils” “You’ve got to release it where people are demanding new homes” “The other thing we’ll introduce is the delivery test.” … Councils who fail to step up will be stripped of their right to decide what gets built in their areas, with decisions made by independent planning inspectors instead.

1. Once the development plan identifies a ‘requirement’ current NPPF paragraph 14 addresses the approach to be applied where the requirement is not up-to-date. The switch to a ‘delivery test’ sounds like the introduction of an approach that focuses on the position where the delivery trajectory set out in the development plan is not achieved in practice. 
    
2. There is indeed a Housing Delivery Test (HDT) in the revised NPPF.  The consultation document states:
    

“Paragraphs 74(c), 75 and 77 set out the policy consequences of the new Housing Delivery Test. Footnote 29 proposes that from 2020, the presumption in favour of sustainable development will apply where delivery is below 75% of the authority’s housing requirement. The proposed threshold of 75% was announced at Budget 2017. The local government finance settlement technical consultation in September 2017 on New Homes Bonus revision, set out that the Government intends to go further in 2019-20. This could include linking payment of the bonus to the housing delivery test or the standard approach to local housing need. We would consult on any further changes to the bonus before proposed implementation in 2019-20.”
 

1. So, it is clear that the HDT serves as a ‘trigger’ for the operation of the presumption in favour of sustainable development (as did the current paragraph 49).
    
2. But in what circumstances will it be concluded that a council has failed to “step up” and therefore be “stripped” of its right to decide?  The revised NPPF is wholly silent on this issue.  Presumably, there will be a further announcement as to when the HDT indicates an LPA will be placed into some form of ‘special measures’.  At present s62A of the 1990 Act allows an applicant to chose whether to submit a planning application for “major development” direct to the Secretary of State where the LPA has been “designated” for the purpose of the section.  It is not clear whether this is the power the Secretary of State intends to use for his latest round of ‘stripping’ or where the threshold for “major development” will in future be set.
    

“Developers can only apply for planning permission in the areas the council has identified … if the protection of the plan is switched off, a developer can apply for planning permission anywhere in your area. …. “outside of naturally (nationally?) protected land like woodland and green belt they can pretty much roam everywhere outside that”.  
 

1. To the uninitiated this sounds very dramatic this sounds like an ‘all bets are off’ approach.  But the word to focus on is “apply”.  A developer can “apply” now wherever it likes; they key is not where applications can be made, but where permissions will be granted.  The indication seemed to be that anywhere outside defined classes of land (presumably green belt, AONB, National Parks, SSSI, woodland etc).
    
2. In reality it would appear that the circumstances in which the revised NPPF will ‘switch off the protection of the plan’ and developers will be able to ‘roam free’ is actually no more than the application of the presumption in favour of sustainable development now found in paragraph 11.  That presumption is clarified but not substantially changed (although the old footnote 9 ‘open list’ is replaced by a closed list in new footnote 7).  However, paragraph 75 now includes two potential ‘triggers’:
    

“For applications which include housing, paragraph 11d of this Framework will apply if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (with the appropriate buffer), or where the Housing Delivery Test indicates that delivery of housing has been substantially30 below the housing requirement over the previous three years.”

1. Footnote 30 indicates that “substantially” below means 75% below.  The operation of the ‘buffer’ also changes: “persistent under delivery” as a trigger for a 20% buffer in a five-year supply calculation is replaced by an HDT indication that delivery was below 85% of the housing requirement. 
    

“Along that corridor there’s an opportunity to build at least four or five garden towns and villages with thousands of homes.”  “Cut through a lot of bureaucracy”
 

1. Encouraging new settlements is already part of government planning policy – but only where the proposals are ‘community-driven’.  Will anything change?
    
2. The NPPF does not contain much new.  New paragraph 73 is pretty much the same as old paragraph 52.
    

Key worker accommodation: “Our nurses, police officers and fire officers want to live as close as possible to where they serve the British public”.
 

1. The Sunday Times got it broadly right.  The glossary includes a definition of “Essential local workers: Public sector employees who provide frontline services in areas including health, education and community safety and can include NHS staff, teachers, police, firefighters and military personnel, social care and childcare workers.” The definition of affordable housing is “Affordable housing: housing for sale or rent, for those whose needs are not met by the market (including housing that provides a subsidised route to home ownership and/or is for essential local workers); and which complies with one or more of the following definitions:  Affordable housing for rent … Starter homes … Discounted market sales housing … Other affordable routes to home ownership: is housing provided for sale that provides a route to ownership for those who could not achieve home ownership through the market. It includes shared ownership, relevant equity loans, other low cost homes for sale and rent to buy (which includes a period of intermediate rent). …”. 
    
2. The provision of affordable housing and “entry level housing” are supported in Chapter 5 of the revised NPPF.
    

“It will be quite surprising how easy we want to make it for people who want to build upwards”
 

1. The consultation document states that the government is considering a new permitted development right for upwards extensions.
    
2. The revised NPPF encourages higher density development which could of course be achieved by building “upwards”.
    

Land-banking “We want planning permission to turn into homes” “I don’t think Oliver [Letwin] is going to hold back”.
 

1. The consultation document states that the government is awaiting the Letwin report – but it seems the Secretary of State must have advanced notice of what he proposes.
    
2. The revised NPPF states at paragraph 78:
    

“To help ensure that proposals for housing development are implemented in a timely manner, local planning authorities should consider imposing a planning condition providing that development must begin within a timescale shorter than the relevant default period, where this would expedite the development without threatening its deliverability or viability. For major housing development, local planning authorities should also assess why any earlier grant of planning permission for a similar development on the same site did not start.”

1. This seems along way from ‘use it or lose it’ or any revolutionary way of ‘persuading’ developers to refrain from ‘banking’ land with planning permission (and which very probably forms part of a LPA’s five-year supply).
   
   Commentary will follow in due course.
    

Hugh Richards
No5 Barristers' Chambers
Birmingham – London – Bristol – Leicester
Tel: 0845 210 5555
Email: hr@no5.com

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