John Qualtrough, partner at Bircham Dyson Bell LLP believes that contrary to the Government's stated intention to simplify the planning system the existing draft National Planning Policy Framework (NPPF) creates uncertainties which are likely to lead to a greater number of planning appeals and court challenges as applicants, local planning authorities and their advisers grapple with its provisions.
"While the draft NPPF contains several references to a
presumption in favour of sustainable development (but provides no
meaningful definition of this), the objective reader may be
forgiven for enquiring whether the draft actually provides for
this," explains John Qualtrough.
"The key sentence introducing the presumption omits to make a
connection with sustainable development. Is this an omission or is
it deliberate? It states that local planning authorities should
approve 'all individual proposals' wherever possible; and,
in particular, development proposals that accord with the statutory
plans; and also grant permission where the plan is absent, silent,
indeterminate or where relevant policies are out of date. There is
no mention of sustainable development."
In addition to the existing statutory presumption in favour of the
plan, the new presumption will operate where there is no plan (70%
of local plans remain uncompleted); the plan is silent; the plan is
indeterminate (some would say that this can be said of many plans);
or out of date (of the 30% of local plans in place many have been
prepared against the background of a Regional Spatial Strategy that
is about to be abolished, and so may need to be certified by the
Secretary of State as being up to date).
"This is only a presumption and can be rebutted," said John Qualtrough.
"However, the Government has set the bar extraordinarily high. For a local planning authority seeking to rebut the presumption, it will not be sufficient merely to show impacts which outweigh benefits. The authority will have to go further and show that the impacts would 'significantly and demonstrably outweigh the benefits'."
"Bottom line is does the presumption apply only to sustainable development and what is sustainable development, when is a plan indeterminate, and when do impacts 'significantly and demonstrably' outweigh benefits?"
"It's clear to me that the Planning Inspectorate and the courts will be increasingly called upon to provide the necessary answers."
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