The revised NPPF – a mixed blessing

06 March 2018

The Government published its draft revised National Planning Policy Statement on 5 March 2018 for consultation.

The draft contains some new policies, many of which have already been trailed in announcements made in 2017. It also pulls together a number of existing policy changes currently contained in Ministerial Statements, such as the small sites exemption. We have briefly summarised the key points for local planning authorities (LPAs) and developers below. 

  • The Presumption in Favour of Sustainable Development (the Presumption) has been substantially rewritten to address “aspects that have been subject to litigation”. The presumption now applies where “the policies which are most important for determining the application are out-of-date”. The precise meaning of ‘important’ will doubtless be subject to litigation. In addition, and in direct response to the Hopkins Homes decision, the exceptions where a proposal conflicts with protective policies is expressly limited to the policies in the new NPPF only. 
  • Development Plans:
    • LPAs are encouraged to produce shorter plans that address strategic priorities only (suggesting a return to portfolios of local plan documents). Plans should also set out development contributions and affordable housing requirements, and the policies will be viability tested at examination. The soundness test is partially relaxed so that the plan should be 'an appropriate strategy' not 'the most appropriate strategy'. Plan policies will need to be reviewed every five years. 
    • There is also strong encouragement to LPA's to 'optimise’ the use of land in their area by adopting policies on minimum densities for town centres and other locations which are well served by public transport so as to secure a “significant uplift in the average density of residential development within these areas”. 
  • Housing Need:
    • Other than in exceptional circumstances, housing need must be assessed using the standard methodology contained in the National Planning Policy Framework (NPPF). That methodology has not yet made its way into the National Planning Policy Guidance (NPPG) but an earlier consultation suggests it will require LPAs to use the average household growth figure for the past 10 years, together with an uplift to reflect affordability in their area. 
    • As now, the local plan will need to identify a five year supply (plus buffer) of deliverable sites, plus a further supply of ‘developable’ sites for years 6 – 10, and 11- 15. Of those, 20% should be small sites of no more than half an acre. There is also express support for small ‘entry-level’ developments adjacent to existing settlements.
    • Once the plan is adopted, the LPA can agree a five year supply (plus a 10% buffer) with relevant developers on an annual basis to counter any suggestion that their plan is out of date. 
  • The new Affordable Housing definition removes reference to Social Rent and extends the definition of Affordable Rent to include privately managed Build to Rent units marketed at an affordable rent. It also includes Starter Homes, Discounted Market Sales housing and an open ended catch-all category "Other affordable routes to home ownership." This should be welcomed, and will doubtless encourage innovation both in local policy and in terms of products. 
  • Neighbourhood Plan: the written ministerial statement on housing land supply and neighbourhood plans is confirmed in a new paragraph 14: following a referendum, if a neighbourhood plan meets the local housing requirement and the local authority has at least a three year housing land supply (albeit, not a five year supply), then development proposals which conflict with the neighbourhood plan should be refused. 
  • Housing Delivery:
    • To encourage delivery, LPAs are encouraged to shorten the life time of permissions below the statutory maximum, and ominously, are advised on major housing applications to “assess why any earlier grant of planning permission for a similar development on the same site did not start”. This falls short of express encouragement to refuse applications by promoters who repeatedly fail to deliver actual developments, but nonetheless hints at a stronger line. How this translates into a material consideration actions remains to be seen. 
    • As a sanction against LPAs, if actual housing delivery in their area over the previous three years is below 95% of the LPA’s housing requirement, it needs to put an action plan in place to promoted delivery (guidance to follow in the NPPG), and as of 2020, if it falls below 75% the revised Presumption applies.
  • Viability: Broad brush viability assessments will be carried out in support of local plan policies. Developers are expressly warned that land purchase prices should accommodate full policy compliance, and overpaying for land is not a valid excuse for not meeting policy requirements. Where viability assessments are submitted in support of a planning application they are likely to be made public. 
  • Current green belt protections remain essentially unchanged.

The consultation closes on 10 May 2018 and the revised NPPF is expected to come into force in the summer. Transitional arrangements are limited: there are no transitional arrangements for the changes which affect the preparation of local plans, while the full impacts of the new paragraph 14 presumptions in favour of recent Neighbourhood Plans and the Housing Delivery test will be felt in 2019 and 2020 respectively. NB: Further changes may be on the way when Sir Oliver Letwin reports on barriers to building later in the year. 

Our view

It is high time that the NPPF caught up with changes in government policy, and the above changes are generally welcome. However, those changes have come at the cost of a revised language in key policies which the government hopes will clarify and improve the application of the policies. This includes changes to key words in the Presumption in Favour of Sustainable Development. It took five years for the Supreme Court to give a definitive explanation of the scope of that policy in the recent case of Suffolk Coastal DC v Hopkins Homes [2017] UKSC 37. Let’s hope that it doesn’t take a further five years of litigation to clarify the meaning of the new policies. 

The content of this article is for general information purposes only. For further assistance or advice regarding planning law, please contact Tom Newcombe on 01223 326611 or via [email protected]. Alternatively, please contact another member of Birketts' Planning and Environmental Law Team. Law covered as of March 2018.