Law Society warns emphasis on “beauty” in NPPF changes will stymie planning system

The Law Society has questioned Government plans to include an emphasis on beauty and measures to penalise poorly performing developers in its response to the consultation on changes to the National Planning Policy Framework (NPPF).

The Government's consultation, which closed earlier this month (2 March), proposed a raft of changes to planning policy in England which include the removal of the requirement for councils to continually demonstrate a five-year housing land supply, new lines that stress councils are not required to revise Green Belt boundaries or build at densities out of character even if they are set to miss their house building targets, and the ability to include past over-delivery in their housing numbers.

The draft also includes an amendment to the NPPF emphasising that: "The outcome of the standard method is an advisory starting-point for establishing a housing requirement for the area."

In a now-published response to the consultation, Chancery Lane said proposals that put an emphasis on "beauty" in planning decisions may affect the predictability of outcome and “will not only cause problems for local authorities and the planning process,” but may also create more opportunities for challenge, thereby slowing down the planning system and courts.

The Law Society added: "We encourage the role of place making in strategic policies. However, due to the problems associated with the lack of definition of beauty this proposal has inherent issues when considering whether schemes will reflect existing character and quality of place."

It noted that in the courts, planning inspectors have recognised that beauty is subjective, and therefore in some case, it has had no impact on the decision reached.

"Therefore in many instances, the inclusion of ‘beauty’ as a requirement will continue to have no impact upon development until a clear legal definition is provided that can be objectively applied."

Additionally, in the instances when "beauty" has been applied, due to subjectivity, those decisions have been "inconsistent and unpredictable, the society said.

It suggested the term beauty be replaced with "well-designed" in order to promote higher levels of predictability.

The Law Society also criticised proposals that would allow local planning authorities to take into account past behaviour of a developer when considering a planning application, arguing that this is an "inappropriate form of evidence and raises concerns regarding the rule of law".

"Considering the behaviour of the applicant would raise serious issues and ramifications for the decision maker and the applicant, but also for others who have engaged in the planning process," the response reads.

It noted that rejecting an application, which otherwise would have advanced, based on the identity of the applicant raises issues regarding the rule of law.

The response added that the proposals do not outline what irresponsible behaviour is, nor do they set out how this is to be taken into account and the consequences that might arise if there is an error in the consideration of behaviour.

Chancery Lane also voiced its opposition to the proposal to remove the explicit requirement for local plans to be 'justified'.

It suggested that the Government introduce clear guidance demonstrating what evidence needs to be shown to establish that local plans are justified. "This will help ensure that the amount of evidence provided is proportionate".

One further reform which the Law Society queried was the removal of objectively assessed need, the five-year housing land supply, and the duty to cooperate.

"These removals run contrary to the government's stated policy objective of its consultation paper to deliver 300,000 houses a year," the response said.

The consultation ran from 22 December 2022 to 2 March 2023. The Government is currently analysing its responses.

Adam Carey