UK: The Draft National Planning Policy Framework - Responding To The Consultation

Last Updated: 21 March 2012
Article by DMH Stallard

Since the election in May 2010, the Government, and in particular the Communities Secretary Eric Pickles have portrayed the planning system as insufficiently sensitive, on one hand, to local opinion and the needs of local communities, and on the other hand to the needs of "the market" and the ability of new development to contribute to stimulating growth.  After various skirmishes, in particular in relation to the premature emasculation of regional planning, the department for communities and local government have now published, in draft, their National Planning Policy Framework.  This document aims to square the circle, but also to replace 47 policy and other documents, which are proposed to be cancelled when the final version of the NPPF is published.

The pro-growth agenda was forecast in the budget, earlier this year.  As the DCLG's Consultation Guidance on the draft NPPF says:

"The Chancellor made clear in this year's Budget the Government's expectation that the answer to development and growth should wherever possible be 'yes', except where this would clearly conflict with other aspects of national policy.

The presumption turns this expectation into policy – a policy that works with the existing plan-led approach, by emphasising the role of up to date development plans in identifying and accommodating development needs. Where those plans are not up to date, or do not provide a clear basis for decisions, the policy establishes the clear presumption that permissions should be granted, provided there is no overriding conflict with the National Planning Policy Framework as a whole."

(DCLG Consultation Guidance paragraphs 16 and 17)

The claim to have reduced "about 1000" pages of policy to 58 pages, in the draft NPPF is slightly disingenuous:  the document is supported by a consultation document (30 pages) and an impact assessment (98 pages).  The latter in particular discusses much of the reasoning behind the wording of the NPPF itself, projected costs savings and increased efficiencies.  It is therefore essential reading in its own right.  By way of example, the impact assessment says, about the introduction of the presumption in favour of sustainable development:

"This places a more positive obligation on local councils to be proactive in identifying and addressing development needs, and enabling development proposals to go ahead unless this would clearly conflict with the key sustainable development principles set out in national policy.  Local councils will need to be more explicit about the needs of their areas and how they are meeting them when producing their plans.  For applicants, they will submit applications as normal, but should have a clearer idea of what isn't acceptable."

(NB In their recently published Note "National Planning Policy Framework: Myth-Buster", DCLG recognise that a presumption in favour of the grant of planning permission has been present in the modern planning system, in some form, since its inception in 1947)

And

"Increased provision for growth in up to date plans – The presumption will place a much stronger expectation on local councils to meet the identified development needs of their areas (unless to do so would conflict with the key policy objectives of the Framework taken as a whole). This is a strong policy requirement, as if local council fail to do this they will risk individual development proposals being allowed on appeal. Greater provision for development needs will enable more planning applications, for more development, to come forward in the expectation that they will be approved".

Interestingly, the impact assessment also says:

"The intention of the presumption in favour, and of the reforms described across Part B, is to make the plan making process easier and more democratic, and as a result enable and encourage more development"

Which might be said to beg the question whether more democratic decision making will necessarily release more land for development. 

Perhaps the most telling gloss on the draft NPPF itself, is provided on page 57 of the impact assessment where, in relation to planning for residential development it says:

"Government is placing a clear expectation on local councils to be ambitious in delivering housing land through ensuring more choice and competition in the land market, by requiring an additional 20 per cent of deliverable sites to be identified to meet their five year housing requirement.  This policy requiring councils to identify additional 'deliverable' sites should help to provide an overall land supply that is actually viable and ready to be delivered and developed.  Where plans are not adopted or the five year supply and additional minimum 20 per cent requirement are not kept up to date, the presumption in favour of sustainable development will apply."

Reverting to the draft NPPF itself, it is important to understand its structure, and the topics on which it provides specific policies.  The introduction is written by Greg Clark, the Minister for Planning, who opens with the words:

"The purpose of planning is to help achieve sustainable development..." 

He then discusses the meaning of sustainable development, and concludes that the NPPF will facilitate this, as well as encouraging public participation in the planning process.

Sustainable development is defined as:

"...development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (taken from the report of the Brundtland Commission 1987)

The NPPF then provides its own more detailed definition of sustainable development,  which it elides into justification for more development, concluding:

"There is no necessary contradiction between increased levels of development and protecting and enhancing the environment, as long as development is planned and undertaken responsibly."

The NPPF then introduces its presumption in favour of sustainable development arguing that "a positive planning system is essential because, without growth, a sustainable future cannot be achieved."

The NPPF recognises and, to an extent, endorses the long-standing legal requirement (Section 38(6) Planning and Compulsory Purchase Act 2004) for planning decisions to be taken in accordance with adopted planning policies.  This is then however overlaid repeatedly with statements in terms that planning applications should be approved unless they would compromise "...the key sustainable development principles set out in this Framework".

In one of its most controversial sentences, paragraph 110 requires that planning permission should be granted for residential development if relevant policies are out of date, for example where a local authority cannot demonstrate an up to date five year supply of deliverable housing sites. 

These policy statements have been highlighted in many published comments on the draft NPPF to date.  It is however important to note that it does provide checks and balances which, if carefully and thoughtfully applied may help to bring the planning system back into balance and ensure that, whilst it does produce more, and quicker approvals, it does not do so at the expense of large areas of presently undeveloped land perceived as having environmental or community value or of the quality of life and amenities of communities generally.  By way of example, the NPPF contains sections on matters such as:

  • Climate Change, flooding and coastal change
  • Natural Environment
  • Historic Environment

The last reads as a (very short) precis of PPS5 "Planning for the Historic Environment" which was itself only published in March last year.  Despite the abbreviation, the impact assessment insists that, by comparison with PPS5, the NPPF does not alter existing policies or create new ones and that:

"...the impacts of moving from Planning Policy Statement 5 to the Framework for those involved with the historic environment should be de minimis."

What is not clear at this stage is whether the Planning for the Historic Environment Practice Guide, published at the same time as PPS5, will survive or will be replaced with another guidance document. It seems likely that in this and other areas, after April 2012, various new guidance documents will be produced in areas like this, thus extending the period of uncertainty which change on this scale will generate.

What changes or clarifications might one wish for in the final version of the NPPF?

  1. Clarification of the use of the expression "Local Plan" in the document. This phrase was dropped in the Planning and Compensation Act 2004. Is it now reinstated, and if so, what underlying legal changes are required to effect this?
  2. The removal of the blunderbuss proposal in paragraph 110, mentioned above, that where local policies are out of date, permission should be granted (even if, implicitly, this is defined as sustainable development). In this respect, the statement in paragraph 19 that the default answer to planning applications should be "yes" if the scheme meets the "key sustainable development principles..." should at least be amended to include reference to planning policy, in accordance with Section 38(6) Planning and Compensation Act 2004 and to allow weight to be attached to emerging or other draft policies, as at present.
  3. In several sections, the NPPF encourages or requires Local Planning Authorities to work together to address wider issues ( - in relation, for example, to Local Plans, the "Duty to Cooperate", Strategic Housing Market Assessments and infrastructure provision). Having abandoned Regional Planning, the implicit acceptance of the need for planning beyond LPA boundaries should be made explicit, with recognition of the need for appropriate structures (and funding?).
  4. The NPPF also requires LPAs to prepare policies which are based on and able to accommodate market demand for land; this needs to recognise that in some areas, development at such a level could have unacceptable impacts, and that therefore this level of demand cannot be met (the draft is inconsistent, mentioning this point in some places but not others).
  5. The reinstatement of a policy to give priority to the reuse of previously developed land (and, in relation to residential development, the proper assessment and reuse of vacant properties).

What happens next? DCLG is saying that the final version of the NPPF will be published in April next year. The draft has attracted an avalanche of comment and criticism, including at least one complete redraft (see Campaign Against Sprawl), and many political interventions. It will be interesting to see if this deadline is met. There is also a question whether, thereafter, supplementary documents will begin to emerge, to replace some of the flesh which has been removed from the bones of the old policy documents. For the historic environment, for example, there  are rumours that the 2010 "Historic Environment Planning Practice Guide" could reappear in a new form.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions