Moving forwards but hopefully before next century...

The Government published a paper "Planning for the Future" this week. 

What struck me as somewhat ironic, was the statement in para. 7 that says "In the Spring, we will publish an ambitious Planning White Paper which offers creative solutions to establish a planning system that works for the next century." I'd quite like it if the White Paper could offer creative solutions to get the planning system working better this century! 

The paper does make clear that the formula for calculating Local Housing Need will shortly be having an overhaul, so an update to the NPPF is definitely on the cards before the end of the year.  The paper says that the update will also make sure that principles of good design and place-making "to support the creation of beautiful places" are embedded into national and local policies, and will be checking whether the current approach to flood risk is robust enough. 

A useful overview is provided by Nicola Gooch here: https://imbusiness.passle.net/post/102g1lv/big-bold-beautiful-mhclg-sets-out-plans-to-reform-the-planning-system

Gladman not so happy with Schrödinger's cat

Press reports on Gladman Developments' disappointment in the outcome of some of their recent Court rulings made me take a look at a recently published judgement [2020] EWHC 518 (Admin).  This reiterates that, whilst the tilted balance and presumption in favour of sustainable development (NPPF para 11d) may be well-trodden paths in much of Dorset, the balancing exercise must take into account the development plan policies (and their intended primacy in decision making under S38(6)).  The decision maker can then decide and given reason for what weight these policies should be given, as part of the balance.

The placing of footnotes (and footnote 6 in particular) and stance on Neighbourhood Plans (as set out in para 14) both helped to confirm this approach.  Footnote 6 explicitly rules out the consideration of development plan policies - but is pegged to the end of 11(d)(i) and therefore does not apply to the balancing element of 11(d)(ii).  So by omission, policies in this Framework in that second part can and do include the development plan considerations.  Para 14 also talks about when Neighbourhood Plans should be considered under para 11(d) which would not have been needed to be said if all development plan policies were excluded in any event.

Interesting.  Well, depending on your outlook!  Looking at the bigger picture, it will still boil down to the decision maker's judgement on the whole balance, and with that, Schrödinger's cat always comes to my mind... and Gladman's too by the sounds of it.

Neighbourhood Plans and the 2 year clause in the NPPF

OK - quite a few Neighbourhood Plan groups and individuals have been mentioning this to me recently - so I thought it best to revisit this point (which I think I blogged about at the time but despite raising objections to the NPPF at that time it didn't get changed by our MPs).

The 2 year clause...

Most of the time, because Neighbourhood Plans (when made) are part of the development plan for an area, they should have a real influence on planning decisions.  This is because in planning law (Section 38-6 of the 2004 Planning Act) planning applications have to be determined in accordance with the development plan, unless material considerations indicate otherwise.

However, what the NPPF says, is one of those 'material considerations'.  And the NPPF talks about what should happen if the policies in the development (i.e. the Local Plan and Neighbourhood Plans), and specifically those policies which are the most important policies for determining that application, are out-of-date (in para 11d).  In such a scenario, planning permission should be granted unless the NPPF says it shouldn't be - so the decision-maker is basically being told to give those policies very limited weight, and only refuse the planning application if there would be real environmental harm. 

So what does it mean by 'out-of-date'?  This certainly is the case when the Local Planning Authority does not have a 5 year housing land supply.  The NPPF then, in para 14, says what consideration should be given to Neighbourhood Plans for that area.  And this is where the '2 year clause' hits home (so only where there isn't a 5 year housing land supply of the Local Plan is otherwise out-of-date).  It basically says that any conflict with a Neighbourhood Plan should be treated as a reason for refusal, but only if all of the following tests are met:

a) the neighbourhood plan was made less than 2 years before the date on which the decision is made;
b) the neighbourhood plan contains policies and allocations to meet its identified housing requirement;
c) the local planning authority has at least 60% of its 5 year supply (ie the equivalent of 3 years); and
d) the local planning authority’s housing delivery was at least 45% of that required over the previous three years (this relates to something called the 'Housing Delivery Test' - the latest results having just been published here).

Now all of these seem slightly unfair on communities that have spent a lot of time and effort jumping through the hoops of getting a Neighbourhood Plan made, but the 2 year clause seems particularly unreasonable.  Local Plans are expected to be reviewed at least every 5 years - so why shouldn't a similar timescale be applied to Neighbourhood Plans in this scenario?

What can you do?  Lobby your MP to get this changed.  Lobby the Minister that head up the MCHLG, and Steve Quartermain who is Chief Planner at MHCLG (see their website).  I have heard they are revising the NPPF later this year - so now is the time to get this changed.

But just to reiterate - it only applies when the Local Plan is 'out of date'.  So usually when there is a 5 year housing supply, Neighbourhood Plans which are more than 2 years 'old' will still be given full weight in decision making.  But this is the case at the moment across much of Dorset.  So I will blog separately on the Neighbourhood Plan review mechanism for those groups who are thinking whether they wish to look into this now.

No resting on laurels

Couple of news items of interest in the planning journals this week...

It would seem that Friends of the Earth, who challenged the sustainability credentials of the NPPF in the High Court and failed (see my earlier blogs) are not going to lay down without a fight.  According to their Barrister, Nina Pindham, they have applied to leapfrog the appeal system to take their case straight to the Supreme Court.

Also a timely reminder for Neighbourhood Plan Groups, with Middlewich having the dubious honour of being the third plan to fail at referendum.   A modest turnout (just under 20%) and a very narrow margin. 

Reading between the lines, the main angst seems to have been about the level of development proposed in the adopted Local Plan and that the Neighbourhood Plan did not argue against it (not that they could), together with the lack of a bypass to cater with the proposed growth, which although mooted has no funding.  There were also political divisions over the plan, with one party campaigning against it.  Will the town have an appetite to have a second go?

The NPPF is off the SEA hook

Interesting to read the judgment of Mr Justice Dove on Friends of the Earth Limited vs SoS for Housing, Communities and Local Government that was released this week - [2019] EWHC 518 (Admin)

The upshot is that the Government have been let off the legal hook for any need to undertake a Strategic Environmental Assessment (SEA) for its national planning policy framework (NPPF) – and I can hear the collective sigh of relief from Whitehall. 

The judge recognises that there is a clear case to be made that the NPPF sets "the Framework for future development consent of projects" and could clearly “have significant effects on the environment”.  However he also concluded that it did not fall within the accepted definition of a plan or programme given that its existence or preparation was not mandatory or regulated in any way.  So on this ‘technicality’ an SEA is not required. 

That doesn’t mean to say it wouldn’t have been a good idea… though a wry smile did cross my face when I read that the Government had argued that nothing worthwhile would come out of any examination of its effects.  Tell that to all the Neighbourhood Plan Groups that have to go through the SEA hoops just for allocating a few small sites for new homes!

Having said all that, I wasn't looking forward to a scenario where the NPPF was quashed - though that would have certainly provided a lot more to post about!

Dorset and the Housing Delivery Test results

The housing delivery test results for Dorset published this week make interesting reading.  Purbeck, West Dorset, Weymouth and Portland benefit from lower housing projection requirement figures than set out in their published plans and therefore are seen to be meeting their needs (with about a 30% margin of comfort).  The conurbation, East and North Dorset are all struggling, at least 15% below their requirements, and will have a 20% (rather than 5%) buffer applied to their 5 year housing land supply requirement in order to encourage the release of more housing land. 

The question will then turn to the impact this may have on the new authorities post-April.  There are no ‘split’ figures as yet for East Dorset and Christchurch, but, based on the joint figure, rural Dorset just scrapes through meeting 102% of its needs.  Whether this will ‘save’ North and East Dorset’s bacon from April onwards has yet to be seen.  Bournemouth, Christchurch and Poole will continue to require a buffer regardless.

A revised NPPF has been also been published, bringing the guidance up-to-date with a few “minor clarifications” which appear to be related to the housing delivery tests, the definition and deliverable development and also in relation to using the presumption in favour of sustainable development when the Habitats regulations requires and appropriate assessment of the impacts.  Nothing that should cause major panic.

First NPPF2 plan to be examined?

Purbeck District Council submitted its Local Plan for examination on Monday (28 January).  I'm wondering if it gets the record for the first plan to be examined under the revised (July 2018) NPPF, given the deadline for having plans examined under the 'old' NPPF ran out on the 24 January. 

It introduces some potentially controversial new policies such as the 'small sites policy', a 'second homes' policy as well as reviewing the Green Belt to release land around Lytchett Matravers, Upton and Wareham, and strategic allocations at Wool and Moreton (Crossways)

For more information see their Local Plan Review webpage

The revised NPPF - what Neighbourhood Plan groups need to know

I completely understand if not everyone wants to spend time ploughing their way through the draft national planning policy framework.  Not all of you reading my blog are insomniacs (or maybe you are?)  But for communities working on neighbourhood plans – or who are now sitting back having got said plan through its referendum – it is worth making a few points back to the planning ministers to make sure all this effort is not undermined by some careless wording in the national plan.

There is a little footnote in paragraph 14 which is about those times when there is a housing shortage, and the presumption in favour of sustainable development.  This little footnote clarifies what "recently brought into force" means, and this determines whether full weight should be given to your neighbourhood plan.  What it says is that your plan needs to be less than 2 years old.  This basically means that to keep your plan effective, you need to start reviewing it before the ink has dried.  And even then you still won’t win.  Let’s face it, although it is theoretically possible, I don’t think any group in the country has managed to get a plan through the system in under 2 years.  Even Local Plans have a ‘5 year review’ expectation, and they don’t have to go through a referendum.  Why isn’t your plan at least ‘good enough’ for 5 years?

To make this point >>> complete Q4 of the response form!

One point that is welcome is that housing requirement figures for designated neighbourhood areas will be set through strategic plans (see paragraphs 66 and 67).  This give local people the opportunity to input into this process, particularly as a simple formula-based approach to determining a figure is not going to be appropriate in some areas. 

To make this point >>> complete Q14 of the response form!

There are some parts of the NPPF that haven’t changed, that perhaps should. 

Paragraph 51 on prematurity is one such example.  At the moment, as soon as some landowners find out that their site is not likely to be included in the plan (ie as soon as the results of the site options consultation are published), they feel they have nothing to lose by submitting a speculative outline application to get in ahead of the neighbourhood plan.  Yet the prematurity argument doesn’t kick in until after the pre-submission and the examination consultations, which is easily another 4 to 6 months.  We need the NPPF revised to say that, in areas progressing a Neighbourhood Plan, major applications will be considered premature by the time the pre-submission draft is published unless it is clear that the proposals are supported by the community.

To make this point >>> complete Q10 of the response form!

Another example is the simplistic stance that the "most recently adopted plan" takes precedence (paragraph 32).  Which means that generic policies in a revised Local Plan, that are not tailored to an area, should arguably trump more detailed policies in an adopted Neighbourhood Plan.  Wouldn’t it be better to get the planning authority to publish a statement to clarify which Neighbourhood Plan policies (or parts) would remain in force, and those which are superseded, as part of their plan-making process?

To make this point >>> complete Q6 of the response form!

There a many other points I could add, but if you are still awake, you can always contact me if you are interested…

The link to the consultation and response form is here:
 
https://www.gov.uk/government/consultations/draft-revised-national-planning-policy-framework

Neighbourhood plans and housing land supply

The guidance supporting national planning policy has been updated this month, with some notable additions on housing and neighbourhood plans.  There are three key messages coming through, which reinforce what I have been advising local groups:

(1)    If a neighbourhood plan is looking at housing or settlement boundaries, it is critical that it takes into account the housing needs for the area, both from district-wide and (if possible) locally sourced evidence. 

(2)    Do not take the settlement boundary for granted, as it may not count in the absence of a five year housing land supply at a district level – so if there are key spaces and places to protect outside of the boundary which are not otherwise subject to a designation, these should be highlighted in your plans.  Any locally sourced information on housing needs can also be used in planning decisions when there is a lack of a housing land supply. 

(3)    Local Plans are likely to get reviewed and allocate additional sites at some point in the future - neighbourhood plans can influence these future decisions, for example by allocating reserve sites to ensure that any future needs can be met.

--------------------------------
For those that want to read on – the relevant extracts are:

http://planningguidance.communities.gov.uk/revisions/41/040/

“Up-to-date housing needs evidence is relevant to the question of whether a housing supply policy in a neighbourhood plan or Order contributes to the achievement of sustainable development”

http://planningguidance.communities.gov.uk/revisions/41/082/

“Where the local planning authority cannot demonstrate a five-year supply of deliverable housing sites, decision makers may still give weight to relevant policies in the emerging neighbourhood plan, even though these policies should not be considered up-to-date … Documentation produced in support of or in response to emerging neighbourhood plans … may also be of assistance to decision makers in their deliberations”

http://planningguidance.communities.gov.uk/revisions/41/083/

When there is a lack of a 5 year housing land supply in the local plan area neighbourhood plan policies restricting housing supply will be “out of date”, and as such “the presumption in favour of sustainable development requires the granting of planning permission, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole; or specific policies in the Framework indicate development should be restricted”  “Decision makers should include within their assessment those policies in the Framework that deal with neighbourhood planning … which states that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted.”

http://planningguidance.communities.gov.uk/revisions/41/009/

“Neighbourhood plans should consider providing indicative delivery timetables, and allocating reserve sites to ensure that emerging evidence of housing need is addressed. This can help minimise potential conflicts and ensure that policies in the neighbourhood plan are not overridden by a new Local Plan.”

The NPPF proposed changes got a new angle added today...

I mentioned in passing, but didn't specifically comment on, the strengthening of the 'presumption in favour of brownfield land' that would be included (with its caveat of overriding conflicts with the Local Plan or National Planning Policy that cannot be mitigated). 

Anyone got a large garden in the countryside?  Well if you have, following on from today's High Court judgement, you own some land that, being outside of “built-up areas” is brownfield land.   Paragraph 111 of the NPPF says that brownfield land is where development ought to be prioritised, and the proposed changes could make this an even more forceful argument.

Sound like sustainable development to you?  Sometimes I think I must be living in a comedy sketch - you couldn't make it up!

NPPF changes consultation (22 February 2016) - you may want to say something...

https://www.gov.uk/government/consultations/national-planning-policy-consultation-on-proposed-changes

The following is a very brief run-through of what I have picked out as key issues for some of my clients…

Affordable housing - broadening the definition to include any affordable products for rent or for ownership, and lifting the requirement that all of these products would have to be affordable ‘in perpetuity’ or have the money released recycled back into providing further affordable housing.
and

Starter homes – making clearer that these should be considered on underused or unviable commercial / employment sites and rural exception sites.  These would be subject to the same minimum time limits on resale (5 years) as other starter homes but local planning authorities could, exceptionally, require a local connection test for example where access to the housing market for working people can be difficult and would be consistent with existing policy on rural exception sites.  Also make clear that Neighbourhood Plans can allocate Starter Home sites in the Green Belt.

These two changes will bring in more options by which affordable homes could provide a suitable solution, but it will be important for those groups preparing neighbourhood plans to be clear whether specific local connection or other issues might be required, and have evidence to support this.

Brownfield sites – strengthening the ‘presumption’ in favour of brownfield land unless there are overriding conflicts with the Local Plan or National Planning Policy that cannot be mitigated.

Small sites (of less than 10 units) adjoining settlement boundaries – making clear that proposals for development on such sites should be supported if they are sustainable.

The consideration of small sites adjoining settlement boundaries could mean that some sites that were dismissed in neighbourhood plans could still come forward for open market housing, which may mean that some neighbourhood plan groups will feel that their ability to shape future development is effectively undermined.

Housing delivery test - introducing a new measurement for under-delivery possibly based on completions compared to the housing targets (or trajectories), and requiring the local planning authority to identify additional sustainable sites if the existing approach is considerable below the housing required through a rapid and targeted plan review.

This is unlikely to be a key issue for more rural parts, but could have implications for sites around the main towns, though any ‘quick’ allocations would still need to go through consultation and examination.

Commuter hubs and higher density housing – where there is a rail interchange that has, or could have in the future, a frequent (15 minutes at peak times) service to that stop, local planning authorities should require higher density housing development. 

Interesting choice of wording – although I don’t think there are any places outside of the conurbation in Dorset where this could apply, it could be argued that everywhere is a possibility!

If the above raises any concerns, it is worth putting in a response to the consultation, rather than hoping that others will...