Revised National Planning Policy Framework (NPPF) published – Will the Devil be in the Detail?

Following formal consultation in March, the government has now published the revised National Planning Policy Framework (NPPF).

The revised NPPF continues to place its emphasis on the Government’s objective of significantly boosting housing supply (with the section on housing not only moved up the contents list, but also renamed “Delivering a sufficient supply of homes” instead of previously “Delivering a wide choice of high-quality homes”), in order to meet the Government’s target of providing 300,000 new homes per year (more on this later).

The key overarching economic, social and environmental “objectives” (previously called “roles”) are highlighted at an early stage within the document. The presumption in favour of sustainable development remains, under new paragraph 11, with some subtle changes in wording compared to the original 2012 NPPF. These include, for “plan-making”:

A change from “Local Plans” to “Strategic Policies”; indeed “Strategic” and “Non-Strategic” policies feature heavily throughout the document;

And for “decision-taking”,

The inclusion of the phrase “most important for determining the application” when referring to policies which may be considered out of date.

No doubt there will be arguments to be made in deciding which policies are “most important” for determining a planning application, although footnote 7 is aimed squarely at housing.

The policies in the new NPPF are “material considerations” which should be taken into account in determining any live planning applications from the day of its publication (24 July 2018). The new NPPF is also likely to lead to the delay in publication of a number of Local Plans/Reviews as authorities digest the document, although interestingly the policies contained in the original 2012 NPPF will apply to any plans submitted for Examination before 24 January 2019. Some authorities may look to take advantage of these transitional arrangements so don’t burn your old NPPF copy just yet!

Whilst the revised NPPF is not markedly different from the consultation version produced in March, to which DJA provided a summary in a previous post, there are a few important exceptions, primarily relating to

affordable housing definition;
small-sites requirement;
design; and
viability assessments

The Key Points

Housing delivery

The new standardised method for calculating housing supply will be introduced in late-January 2019. The methodology is likely to be amended following publication of the ONS household growth projections in September. All signs indicate that these are likely to be significantly lower than previous estimates, which calls into question whether the Government’s 300,000 homes a year target is achievable or even required!
The NPPF confirms that a new Housing Delivery Test (HDT) will be introduced to measure each planning authority’s performance in delivering new houses, rather than just how many are planned for. Alongside the revised NPPF the government has published the HDT “Rule Book”. If the HDT shows that there has been significant under delivery of housing over the previous three years, the local authority must include a 20% buffer in its supply of specific deliverable sites in order to achieve the required five years supply. A buffer of 5% should be used otherwise, or 10% where a local authority wishes to demonstrate a five-year supply through an annual position statement or recently adopted plan
The new NPPF (para.11) confirms the presumption in favour of sustainable development where an LPA cannot demonstrate a five-year housing land supply (with appropriate buffer) or where the HDT indicates that the delivery of housing was “substantially below” (i.e. less than 75%) the overall requirement over the previous three years (footnote 7). (NB, there are transitional arrangements for 2018 and 2019 of 25% and 45% of the HDT results respectively).
Additional certainty has been attached to recently made Neighbourhood Plans (NPs) at para.14. The NPPF confirms that once an NP comes into force, its policies take precedence over existing non-strategic policies in a local plan covering the neighbourhood area, and also that where the presumption in para 11d applies, the adverse impact of housing proposals that conflicts with the NP “is likely to significantly and demonstrably outweigh the benefits” provided that:

the NP was adopted two years or less before the decision; and
contains policies and allocations to meet its identified housing requirement; and
the local planning authority has at least a three-year supply of deliverable housing sites; and
the local planning authority’s housing delivery was at least 45% of that required over the previous three years (again, there are transition arrangements that apply)

Paragraph 75 confirms that planning authorities will be required to prepare an action plan if housing delivery is less than 95% of the housing requirement over the previous three years.
The NPPF has altered the “small sites” requirement; this now states that planning authorities should ensure at least 10% of their housing requirement is allocated on sites no larger than one hectare (para. 68a).
Reference to Garden City principles has been reinstated (para. 72c).

Affordable housing

The “social rent” definition has been reinstated within the final NPPF (Annex 2).

Green Belt

Further tightening of policy on Green Belt, with green belt reviews required to be “fully evidenced and justified” (para. 136).

Design

The NPPF gives greater emphasis to the importance of high-quality design (section 12), with the Ministerial Statement accompanying it (interestingly, the Statement is no longer in the main document itself, we cynically suggest because MHCLG didn’t know who would be in post when the NPPF was published!) saying “The new rules will also make it easier for councils to challenge poor quality and unattractive development, and give communities a greater voice about how developments should look and feel”.

Viability

Paragraph 57 of the NPPF states that applications that comply with contributions set out in planning policy “should be assumed to be viable”. However, it goes on to state that “It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage.” This is a change from the consultation draft, which advised that “no viability assessment should be required to accompany the application”. However, it will be for the decision maker to decide the weight to be given to the viability assessment, having regard to all the circumstances in the case.
The revised Planning Practice Guidance (PPG) section on Viability published with the NPPF also has some important changes to influence the basis of any viability appraisal. The two main ones being the Benchmark Value (the value against which viability is assessed), where the use of ‘Existing Use Value “Plus”’ is recommended. This assumes a landowner will look at releasing land at a premium to its existing use. No stated premium range is given but it will need to be sufficient for the land to be released (and so this may not be appropriate with agricultural land values) and will, as now, depend on what that existing use is. This at least allows a conformity in approach whilst still accepting that a land owner has to want to sell his land for development. In addition, the developers profit “for Plan making” is suggested as somewhere between 15-20%. It will be interesting to see how Developers and Local Authorities can work together on assessing sites as promoted by the Guidance, when under the NPPF, Policy is not meant to restrain sustainable development.

Minerals

The word ‘essential’ has been reinstated in para. 203, although there is a subtle difference in wording when compared to the original 2012 NPPF. It was previously stated that “Minerals are essential to support sustainable economic growth and our quality of life”. Full stop. The revised NPPF now states “It is essential that there is a sufficient supply of minerals to provide the infrastructure, buildings, energy and goods that the country needs”. There will no doubt be even more emphasis now placed on whether there is sufficient supply of minerals, and potentially arguments advanced regarding what infrastructure etc the country actually needs, as the minerals themselves being essential is no longer the starting point, only sufficient supply based on need.
The reference to “Aggregate Working Parties” has been retained, therefore presumably the funding for them to continue to operate will also need to be retained (Para 207a and b), (and also to the National Aggregate Co-ordinating Group which means presumably the group will still have to sit).
Also reference has been retained from the consultation draft that account has to be taken of “any published National and Sub-National Guidelines on future provision”, not just updated guidelines (so historic ones may still apply). Could this also include guidelines published by the industry? The Government’s response document on the representations received does state that “The Government notes the case that has been made for revitalising the MASS. Doing so raises important questions of resources, capability and how to do so in a modern, data-science led way. The Government intends to explore these issues after the publication of the Framework”. Something else we will be keeping our eyes out for.
There was apparently little support within Government for a separate mineral planning policy document, although the section on minerals remains at the bottom of the contents list. We like to think this is because the Government recognises the minerals sector is the foundation on which everything else above it is reliant!

Conclusion

With practitioners and the courts having spent the past 6 years interpreting the wording in the previous version, at 70 pages in length, compared to the previous versions 59 pages and the consultation drafts 66 pages, alongside some subtle rewording, the future will no doubt continue to bode well for planning lawyers and barristers. For the rest of us, here we go again.

The new NPPF can be found here.