Seeing the wood from the trees

The government is setting great store by the draft National Planning Policy Framework, which it says will dramatically simplify and streamline the planning regime, but will it work? Ellen Wiles looks at the detail.

The Draft National Planning Policy Framework was published on 25 July 2011, and has already set off a storm of responses. The key purpose behind the framework, according to ministers, is to simplify the planning process; to "turn this thicket of national planning policy into a clear, tightly focused document", thus creating "a simpler, swifter system that is easier to understand and where you don't need to pay for a lawyer to navigate your way around." In other words, the Government hopes to enable quicker, cheaper development.

That, as an ambition in itself, is laudable. But how likely is it that the NPPF will achieve that objective? If it does, who will be the main beneficiaries? How extensive will the changes to the planning process be? And, after the compression of the 25 existing PPGs and PPSs into just one document, will any key existing policies be lost?

Initial reactions

The reactions of interested organizations are telling. The British Chambers of Commerce has applauded the arrival of the NPPF, on the basis that: "the present (planning) system’s bust and needs fixing", and in the current economic climate "this country needs every bit of growth it can get". Similarly, according to Savills’ Planning Department: "The NPPF is a welcome document. It seeks to keep what is generally regarded as good about existing planning policy, whilst introducing a decisive shift towards promoting development and prioritising economic growth", and it "ought to herald a significant upturn in many forms of development activity".

In contrast, green campaigners and organisations concerned with conserving heritage and open countryside have weighed in against the NPPF. According to the National Trust: "both the tone and the words are sending a very different message that planning is to promote growth, not to protect the environment", and it is likely to lead to "urban sprawl". The Campaign to Protect Rural England has commented: "The new framework will make the countryside and local character much less safe from damaging and unnecessary development. If it is not amended, there will be battles against development across the country that will make the public revolt against the sale of the forests look like a tea party."

The sustainable development presumption

In examining what these responses are based upon, and the extent of their validity, it is worth beginning with the NPPF’s central principles. The NPPF states, somewhat poetically, that "at [its] heart ... is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan making and decision taking". Whilst the phrase ‘sustainable development’ is carefully designed to appeal to all parties connected with the planning process, when interpreted in isolation it is sufficiently broad that it could in theory encompass many different, even opposing visions.

In light of that obvious source of litigation potential, the NPPF sets out to define ‘sustainable development’. It describes it as a composite of three components. The first is ‘planning for prosperity (an economic role)’, which involves ensuring that sufficient land of the right type, and in the right places, is available to allow growth and innovation, including infrastructure. The second is ‘planning for people (a social role)’, which seeks to strengthen communities, by providing an increased supply of housing and by creating a good quality built environment, with accessible local services. The third is ‘planning for places (an environmental role)’ which involves protecting and enhancing the natural, built and historic environment, using natural resources prudently and mitigating and adapting to climate change.

Growth: the priority

The rationale for the order in which these three components is listed is made clear later on in the document, when the weight to be given to the first component is made more explicit. Local authorities are encouraged to take "proactive" approaches to sustainable development, to "approach development management decisions positively – looking for solutions rather than problems so that applications can be approved wherever it is practical to do so", and, importantly, to "attach significant weight to the benefits of economic and housing growth".

Moreover, when it comes to decision making in individual planning applications in circumstances where a Local Plan is "absent, silent, indeterminate or where relevant policies are out of date", then the local planning authority should "grant permission... unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole." When one assesses the Framework as a whole, it is clear that the primary focus is upon the first, economic component. That traces back to Greg Clark’s precursor statement back in March 2011: Planning for Growth, in which he stated that the "planning system has a key role to play ... by ensuring that the sustainable development needed to support economic growth is able to proceed as easily as possible".

Conservation and landscape

This is not to say that the NPPF gives developers licence to run roughshod over heritage and countryside for the sake of growth-generating development. It does adopt many of the key features of the existing national policies that are designed to protect designated heritage assets and designated areas of countryside, including the presumption against inappropriate development in green belts in PPG2, protection of AONBs and other ‘valued landscapes’ as per PPS7, and conservation of heritage assets "in a manner appropriate to their significance" as per PPS5. However, there is a notable absence in the NPPF in respect of countryside, namely any explicit protection of undesignated open countryside or green space which, it appears, is left to local authorities’ discretion.

Local plans: preparation and contents

Given the new emphasis to be placed on local plans in the planning process, the NPPF contains relatively detailed guidance about the content of local plans, including the nature of the up-to-date evidence base that should inform them. For instance, when preparing their local plans, local planning authorities should take "full account of relevant market and economic signals such as land prices to inform judgements about levels of demand."

Local authorities are also directed to curb the contents of their local plans so that they do not operate to hinder delivery of development: "the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened", and "the costs of any requirements likely to be applied to development, such as requirements for affordable housing, local standards, infrastructure contributions or other requirements should...provide acceptable returns to a willing land owner and willing developer".

Local plans: approval process

The NPPF goes on to set out conditions for the approval what it renames ‘Local Plans’. Each local plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the duty to cooperate with neighbouring local authorities and legal and procedural requirements, and whether it is "sound". ‘Soundness’ means that it must be "positively prepared", in that it is based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is practical to do so; "justified",  in that it is the most appropriate strategy when considered against the reasonable alternatives, based on proportionate evidence; "effective", in that it is deliverable over its period and is based on effective joint working on cross-boundary strategic priorities; and "consistent with national policy", i.e. consistent with the NPPF policies. The possibilities for challenge arising out of these requirements – for example, in respect of circumstances where it could be deemed practical for one local authority to allow development and infrastructure based on an unmet requirement from a neighbouring authority - have prompted many to suggest that this approval process will trigger numerous appeals.

Neighbourhood plans

Although the NPPF seeks to strip out the upper layers of the planning policy, such as RSSs and national policy guidance statements, it adds a new, lower layer which began life in the Localism Bill, namely neighbourhood planning. The NPPF provides for neighbourhood plans to be created in addition to local plans, for the purpose of "giving communities direct power to plan the areas in which they live", which includes the ability to "set planning policies for the development and use of land", and "give planning permission through Neighbourhood Development Orders and Community Right to Build Orders".

The only apparent restriction on the ability of neighbourhoods in this regard is that neighbourhood plans should reflect and positively to support the local plan. However, this does not mean that they cannot go beyond it; "neighbourhoods will have the power to promote more development than is set out in the strategic policies of the Local Plan."

The approval process for a neighbourhood plan is different to that of a local plan, however; it must first be assessed by an independent examiner and must then go to a local referendum. In order to pass the first hurdle, the independent examination, it must demonstrate regard to the policies in the NPPF and be in general conformity with the strategic policies in the local plan, as well as any relevant EU obligations and human rights requirements. It remains to be seen to what extent the opportunity to create neighbourhood plans will be taken up within local districts, and how they will be taken into account by local planning authorities in their decision making for the district as a whole.

Planning applications

After dealing with the contents and procedure for the local and neighbourhood plans, the NPPF moves on to the planning application process. It makes a point of encouraging "pre-application engagement and front loading", so as to improve the efficiency and effectiveness of the planning application system for all parties, and provide improved outcomes for the community. However, it expressly acknowledges that a local authority "cannot require that a developer engages with them before submitting a planning application".

In accordance with the aims of the Localism Bill, the decision-making process is described as ‘plan-led’, with "local plans, incorporating neighbourhood plans where relevant, being the starting point". This raises questions about the extent to which the NPPF itself is intended to have ‘teeth’ in the planning process.

There is no significant change in the core existing principles to be applied to planning conditions and obligations, save for an emphasis on caution where they might put off developers, with a reminder that local authorities should "avoid unnecessary conditions or obligations, particularly when this would undermine the viability of development proposals".

Minerals and energy

Mineral extraction and energy generation are given special encouragement, in particular renewable energy. Regarding mineral reserves, local planning authorities are directed to: "as far as is practical, ensure sufficient levels of permitted reserves are available from outside National Parks, the Broads, Areas of Outstanding Natural Beauty and World Heritage sites", and when determining planning applications, to "give significant weight to the benefits of the mineral extraction, including to the economy". Regarding energy generation, they should "encourage" proposals such as "underground gas and carbon storage if local geological circumstances indicate its feasibility". Again, this in effect means that a local planning authority should lean towards granting permission for what may be large-scale energy generation and storage proposals even when they are in open countryside, provided they are not located in a designated landscape area.  Finally, local authorities are required to put in place a "positive strategy to promote energy from renewable and low-carbon sources, including deep geothermal energy."

Housing

Housing is given a special boost in the NPPF, which states that Government’s "key housing objective is to increase significantly the delivery of new homes", since "everyone should have the opportunity to live in high quality, well designed homes, which they can afford, in a community where they want to live". This direction extends not just to towns and cities but also to rural areas, where local planning authorities are required to be "responsive to local circumstances and plan housing development to reflect local requirements, particularly for affordable housing", with the qualification that they "should avoid isolated homes in the countryside unless there are special circumstances" which reflect the existing guidance in PPS7. However, the additional guidance in PPS7, such as the requirement that all housing in rural areas should "maintain or enhance the local environment", has been stripped away and replaced with an encouragement for "quality design" that "ensures attractive, usable and durable places".

Clearly the ensuing consultation, which is open until 17th October 2011, will attract a wide range of responses. It will be interesting to see whether the Government will amend the NPPF as a result, or whether it will maintain its current position that hacking back the thicket in this way will provide the best route forward.

Ellen Wiles is a barrister at 39 Essex Street.