Summer Surprise: The New NPPF has Landed

This has certainly been a surprising summer.

It isn’t often that a major piece of planning policy is soft-launched by DEFRA, but that is exactly what happened on Friday, when a press release about drought relief confirmed the imminent publication of the updated NPPF.

The news was then confirmed in a BBC article, which was (somewhat unusually) mostly about pubs, before finally getting a confirmation press release from MHCLG first thing this morning.

Even more surprisingly, at least for me, it is being published on a week when I am actually in the office. Something I am personally deeming a Summer miracle.

Perhaps less surprisingly, it hasn’t been published alone. As such, today has given us:

• A policy statement on “Creating a clear, rules-based planning system”
• The new NPPF
• MHCLG’s response to the draft NPPF Consultation
• The latest Housing Delivery Test Results – which are a little behind schedule; and
• The Government’s response to its consultation on streamlining Statutory Consultees

This is by no means a through or comprehensive review of all of these documents. I simply haven’t had time to fully absorb the new NPPF yet, and haven’t even attempted to read the HDT results.

On a first review, however, the following did jump out at me.

Spoiler alert: none of it is about pubs.

Transitional Provisions

As expected, the policies in the new NPPF for decision-making have immediate effect.

There has, however, been a slight softening of the transitional provisions, as they apply to policies in currently adopted local plans, albeit they still have significant teeth.

In the consultation draft, local plan policies that were “in any way inconsistent with the national decision making policies in this Framework should be given very limited weight”. This has now been amended, so that it only relates to policies, or parts of policies, that are “materially inconsistent” with the national decision making policies in the Framework.

The full text of the transitional provisions for decision making in Annex A are set out below:

“For the purposes of decision-making“

1. The policies in this Framework are material considerations which must be taken into account in decision-making from the day of its publication.
2. Development plan policies (or parts of those policies) which are materially inconsistent with national decision-making policies in this Framework should be given very limited weight. The only exception to this is where they have been examined and adopted66 or made against this Framework. Other development plan policies67 should not be given reduced weight simply because they were adopted prior to the publication of this Framework.
3. Where a local planning authority can demonstrate a five year supply of deliverable housing sites (with the appropriate buffer) and where the Housing Delivery Test indicates that the delivery of housing is more than 75% of the housing requirement over the
   previous three years, for the purposes of policy S5(1)(j), if the most up-to-date local housing need figure (calculated using the standard method set out in Annex D) is greater than the housing requirement set out in adopted development plan policies, this should not be considered as evidence of unmet need, for a period of five years from the date of the plan’s adoption.”

The transitional provisions for plan making do not appear to have substantively changed from the consultation draft.

NDMPS

NDMPS both remain a core part of the newly revised NPPF and remain non-statutory. However, the threat of them becoming so has also not been taken off the table.

The consultation response on this point says “The matter continues to be kept under review and should a decision be taken to progress statutory NDMPs, the government will ensure that their scope is clearly defined, supported by guidance and transitional arrangements, and that their role in relation to development plans is set out clearly to provide certainty for decision-makers and communities”.

Which is both less heated than the consultation itself, and also a clear warning that statutory NDMPS still remain an option if the non-statutory version don’t do the trick.

Presumptions in favour of development

The twofold approach to the presumption of sustainable development remains, albeit with some changes.

• Policy S4 is a broadly permissive policy that applies within settlements – whereby the “default” is that developments should be approved “unless the benefits of doing so would be substantially outweighed by any adverse effects, when assessed against the national decision-making policies in this Framework”; and
• Policy S5 is a broadly restrictive policy that applies outside settlements – whereby only developments that fall into a category on a defined list within the policy itself should be approved.

The categories of developments capable of being approved under policy S5 are, thankfully, fairly broad – encompassing both the usual agricultural, sporting, rural and tourism” type schemes, as well as allocated sites, development that would meet an evidenced unmet need (included where the LPA has failed the housing delivery test or does not have a five year housing land supply), and of course…..

Development around Train Stations

the exception for development around train stations. This policy has been broadened since the consultation draft. It now applies to

the definition of well connected station has broadened so it now means:

“Well-connected station: Railway stations and underground, tram and light rail stops located within a top 80 Travel to Work Area located partially or fully within England by Gross Value Added (GVA)72 and which, in the normal weekday timetable, are served (or have a reasonable prospect of being served due to planned upgrades or through agreement with the rail operator) throughout the daytime by at least four trains or trams per hour overall, or at least two trains or trams per hour in any one direction.”

As opposed to the top 60 TWA proposal that was consulted upon.

The minimum density requirements for these sites has also been adjusted from the consultation draft and is likely to be more workable under the revised proposals.

The requirements are now for “a density of at least 35 dwellings per hectare should be achieved within the net developable area of the site. Higher densities – of at least 45 dwellings per hectare – should be achieved where the service frequency is at least twice that of the minimum required for a well-connected station.“

Small and Medium Sites

The radical proposals for changing size thresholds for developments have been significantly scaled back.

The definition of Major Development remains unaltered. Instead we have a new definition of Medium Development that reads is as follows:

“Medium development: A sub-set of major development, comprising housing development where 10-49 homes (inclusive) will be provided, and the site has an area of up to 2.5 hectares. Policies in this Framework which relate to major development involving the provision of housing also apply to medium development, whereas policies which apply exclusively to medium development do not apply to larger scales of development”.

This would be a lot more helpful if there where policies in the Framework that exclusively applied to Medium Development.

So far (and I used word search for this) I have only found one. The local validation checklist policy (DM2(2)) – which states:

“Local validation lists should only include additional information requirements if there is a policy in the development plan requiring a specific further assessment. Any such additional information requirements should not be applied equally to all applications but should be proportionate to the scale of development and its potential impact. Where appropriate, the requirements should clearly distinguish between what is required for major, medium and other types of development proposal.

Random Observations on Housing Policies

MHCLG has officially made military housing an affordable housing tenure. This has been done both in policy terms, through the introduction of policy HO8(2), which states:

“Development proposals that include military affordable housing should not be required to meet development plan requirements for the mix of affordable housing tenures (including the minimum proportion of Social Rent). These proposals should:

a. Demonstrate an evidenced unmet need for military affordable housing (as provided by the Ministry of Defence); and
b. Meet development plan requirements for the proportion of affordable housing on the site. This includes where military affordable housing is the only form of affordable housing provided, or where military affordable housing is delivered alongside other
tenures of affordable housing”

but also by adding military housing into the NPPF definition of Affordable Housing.

In fact it is added twice, once in the main affordable housing definition, but also with its own subcategory, which states:

“Military affordable housing: meets all of the following conditions: (a) the rent is submarket military rent as determined by the Ministry of Defence; and (b) it includes provisions to remain as affordable housing for future eligible households, service personnel and veteran households (including widowed partners and spouses of service personnel), or for the subsidy to be recycled for alternative affordable housing provision”.

Which might make the MOD our newest and largest registered provider….

Policy HO13 is also interesting in a post-hillside world. This states that:

Retail Planning

My hopes for a complete overhaul of retail planning policy – to take account of the impacts of Class E – have proven misplaced.

The substantive policies in chapter 8 remain largely unchanged although the proposal to re-introduce disaggregation requirements into the sequential test are not being taken forward.

The consultation response addresses this by stating: “Policy TC3 has however been amended to remove the additional wording on disaggregation. This had been added with the intention of reflecting relevant parts of the Planning Practice Guidance, but the government accepts that its inclusion as proposed could imply undue rigidity in the way the sequential test is intended to work. One further change has been made to policy TC3, to clarify that where the policy indicates that accessible sites should be preferred when considering edge of centre and out of centre locations, this means in relation to access by non-car modes.”

Practical Stuff: Validation Lists, s.106 Agreements and Planning Conditions

The revised NPPF is clearly very keen on standardisation and the use of national model conditions and planning obligations, wherever possible.

Policy DM6 clearly states that where national model conditions, or planning obligations, are “relevant to a development, they should be used unless there are strong reasons for using” an alternative.

This commitment to national model s.106 Agreements is expanded on further in the both the Policy Statement and the Consultation Response, which respectively state that:

“To reduce delays in the planning process and lower costs for developers and local planning authorities, we remain committed to progressing work on producing model planning obligations. We will shortly consult on a standard s106 template for medium sites which would be expected to become the default for applications in the future.” (policy statement); and

“Revisions have been made to policy DM6(4) to align with the approach for planning conditions so that, where national model planning obligations are relevant to adevelopment, they should be used unless there are strong reasons to depart from them. The government is taking forward a programme of work with the Planning Advisory Service to support and streamline the process of section 106 agreements, with an initial focus on medium sites. The government will consult on draft standard template planning agreements for medium sites, which are designed to reduce delays and resource burdens on local planning authorities and SME housebuilders.” (consultation response)

These consultations are likely to be both important and key to saving all of us quite a bit of time and effort as local government re-organisations progresses.

If we can get to a point where we have a workable and generally accepted set of national template s.106 Agreements, then it means that there will be much less of a need to consolidate templates agreements on an individual LPA basis as they move into unitary authorities. Which could make everyone’s lives a bit easier!

The standardisation of local validation lists (Policy DM2 and Annex C) is also likely to be largely welcomed – particularly by developers and planning consultants who operate in multiple LPA areas. As navigating slight differences between validation lists, and indeed growing issues around validation, are a frequent source of frustration.

Relationships with other Regulatory Regimes

Policy DM7, which clarifies the relationship between planning and other regulatory regimes, has been retained.

This reads as follows:

“DM7: Relationship with other regulatory regimes

1. Development proposals should be assessed on the basis of whether they would be an acceptable use of land. Matters which are controlled by separate regulatory regimes may, in the context of a particular development proposal, be a material consideration where they have land-use implications. Decision-makers should assume, unless there is clear evidence to the contrary, that those separate regimes will operate effectively.
2. Planning decisions should not seek to duplicate or extend controls imposed by separate regulatory regimes other than where there is a development plan policy in place applying optional technical standards for the development proposed (see policy PM13).
3. The parallel processing of planning and other regulatory consents is encouraged where this can help to align and expedite the consenting of development.22
4. Where compliance under a separate regulatory regime requires subsequent changes to an approved development proposal, such changes should be approved unless they would mean the development is no longer acceptable when assessed against development plan and national decision-making policies.“

The consultation response justifies this by stating that “The policy reflects established case law, allowing decision-makers to judge, on a case-by-case basis, whether such matters (dealt with by other regulatory regimes) are material to the planning decision, but that these regimes are assumed to operate effectively unless there is evidence to the contrary.”

This policy requirement needs to be read alongside policy PM13 and N1(2), which relate to technical standards and BNG requirements.

Policy N1(2) reminds LPAs that “Development plans should only set local standards for biodiversity net gain which are in excess of the statutory net gain requirement where this is for specific site allocations, and is fully justified and deliverable. Local standards should not extend to categories of development which are exempt from statutory biodiversity net gain.”

Which is likely to be an unwelcome development for those LPAs who had been proposing higher BNG requirements across their entire authority area.

Policy PM13 concerns technical standards. This policy has changed since the consultation draft and is now considerably more nuanced than its predecessor. There is still a strong stance taken against LPAs setting higher technical standards than required under building regulations, but does noq contain specific guidance in relation to water efficiency, energy efficiency and accessibility standards – where some deviation is permitted.

All of which should act as a strong signal to LPAs (or at least to the Planning Inspectorate), that councils should not be either duplicating the requirements of other regulatory regimes or setting significantly more onerous local standard requirements than required under building regulations from now on.

This is one of those NDMPs that is likely to put the cat amongst the proverbial pigeons in some parts of the country.

Viability

Given the current national picture, it is possibly not a huge surprise that the proposals to standardise inputs into viability appraisals (and indeed the entire draft viability annex) have not been taken forward for the moment. They have also rowed back slightly on the principle that all viability testing should be done at local plan level.

The Consultation Response addresses this as follows:

“The government has considered these responses and agrees that, while plans should clearly set out policy requirements for the contributions expected from development, sufficient flexibility is needed at application stage where viability challenges arise.

The government will continue to promote clarity at the plan-making stage on expected contributions in order to reduce the need for negotiation at decision-making stage. However, Planning Practice Guidance on viability will continue to make clear that viability assessment in plan-making should be proportionate and should not require individual testing of every site or assurance that individual sites are viable.

Revisions have been made to policy DM5 to ensure that appropriate flexibility remains available at application stage where justified (see response to Questions 25 and 26).”

I will leave it to those more qualified to comment on whether the flexibilities in policy DM5 go far enough, but they certainly don’t read like a “get out of jail free card” at first glance.

Statutory Consultees

You will be relieved to learn that the response to the consultation on Statutory Consultees can be dealt with much more swiftly.

The government has opted to:

• Remove statutory consultee status from The Gardens Trust and Theatres Trust, whilst simultaneously introducing notification requirements on LPAs – requiring them to notify these organisations of relevant applications, instead of formally consulting them.
• Retain Sport England as a statutory consultee, while narrowing the scope of applications on which it must be consulted. Sport England will no longer be notified on applications relating to defence and prison sites, sites with playing pitches below 0.4 hectares, development adjacent to playing fields, ancillary facilities such as pavilions, parking, lighting and storage, and temporary classrooms and other routine school development.
• Narrow and refocus the referral criteria for National Highways, Active Travel England, Historic England and the Mining Remediation Authority. The exact measures for each agency differ, but the general intention for all of them is to ensure that only higher impact/ larger developments are referred, whilst those which are lower risk are dealt with by LPAs directly, with reference to guidance notes and best practice information.

The Ministerial foreword to the response promises that “Regulations will follow in due course to bring these reforms into force and support will be available from the Planning Advisory Service to help LPAs implement relevant requirements effectively.” 

Conclusions?

The new NPPF is here. It has immediate effect for decision-making. NDMPs bite immediately, and anyone with an undetermined planning application, draft s.106 Agreement or Appeal in progress is probably going to have a very busy few days as we work through the implications.

Beyond that, if I was going to proffer an immediate reaction, it would be this: The final NPPF follows the direction of travel set by the consultation draft. There don’t appear to have been any major shifts as a result of the change in Prime Minister – which is both really quite reassuring for longer term planning and actually means that we can run redline versions this time around. It remains a document designed to standardise and streamline – with a view to boosting development and economic growth, whilst keeping a close eye on the need to ensure the impacts of that growth are mitigated. Any claims that it is a Developer’s or a NIMBY’s charter would be misplaced.

Now, if you excuse me, I need to go and update the NPPF definition in a whole load of draft s.106 Agreements… whilst waiting for the consultations on a national model planning obligation to open.