The new NPPF: Unpicking the threads

As we were all basking in the glorious summer heat and waiting to see if the summer recess would arrive early, the new NPPF (National Planning Policy Framework) was published at the 11th hour. Its publication follows extensive consultation on the March 2018 draft (for our views on that please read our article ‘The revised NPPF – a mixed blessing’).

After six long years and the extensive litigation that helped us to properly understand the meaning of the previous NPPF, the Government has now introduced new policies which show a subtle departure from the previous NPPF. No doubt there will be a period of adjustment whilst interpretation is settled. 

Our key highlights of the new NPPF are broken down below:

Housing Need

• Housing Needs Assessments: In order to determine the minimum number of homes needed strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach. The Government will consider their standard method of calculating housing need in light of the impending publication of new household growth projections (in September). It has been reported that these are likely to be lower than previous estimates.
• A new definition of Affordable Housing: The definition of Affordable Housing now includes Starter Homes and Discounted Market Sales. Also, further to the consultation, the definition of Affordable Housing for Rent now includes Social Rent. This wider definition will assist developers in providing various options for affordable housing on sites and this may be the time to go back to the local authority to discuss revisions to any s.106 Agreements that require the narrower definition of Affordable Housing. For local authorities they will need to consider the wider definition now in light of the current proposed developments.
• Small Sites: Local planning authorities will need to identify land to accommodate at least 10% of their housing requirement on sites no larger than one hectare unless it can be shown that there are strong reasons why this cannot be achieved. This is less than the previous figure in the draft NPPF was which was 20% (although it was 20% half a hectare or less).

Viability

• Viability appraisals to be standardised and publically available: Applicants will have to justify the need for viability assessments at the application stage and viability assessments will need to reflect the recommended approach in national planning guidance and should be made publically available. This will be difficult for developers and there is of course the risk of sensitive material in the public domain.

The Presumption and the Housing Delivery Test

• A new presumption in favour of sustainable development: The old paragraph 14 has become the new paragraph 11. A hotbed for argument in the old NPPF and likely to be just as controversial now; the subtle change in wording (considered to be a response to the Hopkins Homes decision) which now limits the main exception to the presumption to where certain limited NPPF policies only “provide a clear reason for refusing development”. 
• The introduction of the Housing Delivery Test: The innovation generating the most excitement (or trepidation depending on your viewpoint), is the new Housing Delivery Test. If over the previous three years, actual delivery of housing falls below the LPA’s annual requirement, then, if delivery is below: 95% the LPA will have to prepare an action plan (in accordance with NPPG guidance to be published); 85% the LPA will have to add a 20% buffer to its housing requirement; substantially below (i.e. less than 75% of) the housing requirement, then the presumption will apply. Given the potential here for local planning authorities to lose control of decision making, this area will no doubt fuel planning by appeal and future legal challenges. 
• Housing Delivery Test figures to be published in November: Although we have a definition of the Housing Delivery Test, we need to wait till November 2018 for the first figures. 

Plan making

• Plans to be examined against 2012 NPPF until 24 January 2019: The 2012 NPPF, although replaced, still remains for the purposes of examining plans, where those plans are submitted on or before 24th January 2019 (see paragraph 214). Local Authorities who are currently going through that process will of course be aware that those plans will be interpreted against the new NPPF once adopted. 
• Light-touch strategic policies: Strategic policies, which should look ahead over a minimum 15 year period from adoption should not cover detailed matters more appropriately dealt with through neighbourhood plans or other non-strategic plans and the development plan for an area comprises the combination of strategic and non-strategic policies which are in force at a particular time.
• An amended test for soundness: The test for soundness has been amended to make it clear that the plan must provide “an appropriate” strategy which as a minimum seeks to meet the area’s objectively assessed needs. This is different from the wording in the draft NPPF which stated that it should provide a strategy to meet as much as possible of the area’s objectively assessed needs. From an LPA’s perspective, ‘an appropriate strategy’ is also a softer test than the ‘most appropriate strategy’ requirement of the old NPPF. But otherwise, setting the area’s OAN as a minimum requirement will be onerous on the local planning authority.

More detail is of course contained in the new NPPF and as appeal decisions start to come forward and as cases are brought before the Courts further clarity will be given to its interpretation and we will update accordingly.

Importantly, we are also awaiting further amendments to the planning practice guidance to provide clarity to the new NPPF. Such updates tend to come with little notice; this has been the position for many years now since its introduction.

We look forwarded to providing further updates, but in the meantime, if you have any questions or any concerns that relate specifically to your plans/projects/applications please contact Tom Newcombe or a member of Birketts’ Planning Team. Law covered as at August 2018.