Alastair Lewis and Sarah Wertheim outline the latest National Planning Policy Framework changes and explain how future developments will be impacted by the new rules.
Just like buses, major planning reforms seem to be coming along in threes in 2021, which is shaping up to be a year of significant change in the planning world. We have already had significant changes to the permitted development regime and there is still potential for a major shake-up in the Planning Bill promised in the Queen’s Speech, though recent press reports suggest this could be watered down significantly due to the strength of opposition. Sandwiched in between the two are recently made revisions to the National Planning Policy Framework (NPPF).
The revisions to the NPPF came into force on 20 July 2021, replacing the 2019 version of the NPPF. This is something of a big deal, because since the first version of the NPPF was published in May 2012 it has only been changed twice since.
To accompany the changes, MHCLG has also published the National Model Design Code.
Here is a summary of the main NPPF changes:
- Measures to improve design quality, including a new requirement for Councils to produce local design codes or guides;
- Emphasis on using trees in new developments;
- Adjusting the presumption in favour of sustainable development for plan-makers;
- New limits on the use of Article 4 directions to restrict Permitted Development (‘PD’) rights;
- Councils should ‘retain and explain’ statues rather than remove them; and
- Encouraging faster delivery of public infrastructure, like further education colleges, hospitals and prisons.
Chapter 2: Achieving Sustainable Development
Paragraph 11 stipulates that all plans should “promote a sustainable pattern of development that seeks to…align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects.’.
Paragraph 7 refers to the purpose of the planning system making a ‘contribution to the achievement of sustainable development’. The revised version makes additional reference to the 17 Global Goals of Sustainable Development (agreed by the UN in “Transforming our World: the 2030 Agenda for Sustainable Development”). Those goals address social progress, economic well-being and environmental protection.
Chapter 3: Plan Making: Long term vision for large scale developments
Paragraph 22 is about long-term vision in strategic plan making. It has been revised so that it now says that ‘where larger scale developments such as new settlements or significant extensions to existing villages and towns form part of the strategy for the area’ policies should be set within a vision of at least 30 years (i.e. further ahead than the usual 15 years) to take into account the likely timescale of delivery. It’s important for planning authorities to note that this change does not affect local plans already published or submitted for examination before 21 July 2021, however, it is acknowledged that it is something that planning inspectors will need to take into account when examining plans published or submitted for examination after 21 July 2021.
Chapter 4: Decision Making: Article 4 directions and PD rights
Article 4 Directions are used by Planning Authorities where they want to remove Permitted Development (PD) rights in a specific area, for example PD rights which allow for residential conversions. Paragraph 53 imposes new limits on the use of Article 4 Directions. Where they relate to changes from non-residential use to residential use, they must be limited to situations where the Direction is necessary to avoid wholly unacceptable adverse impacts, for example the loss of the essential core of a primary shopping area, where that would seriously undermine its vitality and viability. It says that all Article 4 Directions must be based on robust evidence and apply to the smallest area possible. Planning authorities should note that the changes set a higher bar when making Article 4 Directions. The Government has said that existing Article 4 Directions will remain in force during a one year grace period which ends on 31 July 2021 but after that, Planning Authorities must reapply if they wish to secure exemption from the new limitations.
Chapter 8: Promoting Health and Safe Communities: Speeding up delivery of public infrastructure
Paragraph 96 is new. It says that to ensure faster delivery of public service infrastructure such as further education colleges, hospitals, criminal justice accommodation, Planning authorities should work proactively and positively with promoters, delivery partners and statutory bodies to enable key planning issues to be resolved before applications are submitted thereby creating much needed faster delivery.
Chapter 12: Achieving Well-Designed Places: the National Design Guide and Model Design Code and Trees
In paragraphs 127, 128 and 129, reference is now made to neighbourhood planning groups, emphasising that they can play an important role in identifying the special qualities of an area and in explaining how these should be reflected in development ‘both through their own plans and by engaging in the production of design policy, guidance and codes by local planning authorities and developers.’
There is also reference to new responsibilities on local planning authorities to prepare Design Guides and Codes which align with the principles set out in the National Design Guide and National Model Design Code, and which reflect local character and design preferences. Authorities should ensure implementation of these guides and codes. Paragraph 129 provides further information about how these guides and codes can be prepared, whether that be at an area-wide, neighbourhood or site-specific scale.
Paragraph 131 is new. It is about securing tree planting to help mitigate and adapt to climate change. It says that new streets should be tree lined and that opportunities should be taken to incorporate trees elsewhere in developments such as in parks and community orchards.
It also says that appropriate measures should be put in place to secure the long-term maintenance of newly planted trees and that existing trees are retained wherever possible. It says that developers and the Planning Authority should work with highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.
Paragraph 134 has been amended to say that development should be refused if it is not well designed, especially where the development fails to reflect local design policies and government guidance on design. It also now highlights that significant weight should be given to development which reflects local design policies and outstanding or innovative designs which promote sustainability.
Chapter 14: Meeting the Challenge of Climate Change: Flood Risk
Both paragraphs 161 and 162 now specifically say that ‘all sources’ of flooding, as well as current and future impacts of climate change, should be taken into account when applying the sequential test.
Previously, the wording only specified ‘flood risk to people and property’. It should also be noted that paragraph 161 says that plans should now not only use opportunities provided by new development to reduce the causes and impacts of flooding but also use ‘improvements in green and other infrastructure’ as well as ‘making as much use as possible of natural flood management techniques as part of an integrated approach to flood risk management.’
There is a change to the tests that must be met under Paragraph 167, in cases where development is proposed in areas at risk of flooding. In the light of any site-specific flood risk assessment and any sequential and exception tests, as applicable), among other things, it must be demonstrated that the development must now be appropriately flood resistance and resilient ‘such that, in the event of a flood, it could be quickly brought back into use without significant refurbishment.’
Annex 3 is new. It is introduced by paragraph 163, which says that if it is not possible for development to be located in areas with a lower risk of flooding (taking into account wider sustainable development objectives), the exception test may have to be applied. The need for the exception test will depend on the potential vulnerability of the site and of the development proposed, in line with the Flood Risk Vulnerability Classification, which is set out in the new Annex 3. It sets out five different heads of flood risk vulnerability for different types of development: Essential Infrastructure, Highly Vulnerable, More Vulnerable, Less Vulnerable and Water-Compatible Development.
Chapter 15: Conserving and Enhancing the Natural Environment: National Parks and AONBs
Paragraph 176 relates to development within National Parks, the Broads and Areas of Outstanding Natural Beauty. It creates a new obligation for development within their setting to be ‘sensitively located and designed to avoid or minimise adverse impacts on the designated areas’. The NPPF continues to say (now in Paragraph 177) that permission ‘should be refused for major development’ other than in exceptional circumstances and where it can be demonstrated that the development is in the public interest.
Chapter 16: Conserving and Enhancing the Historic Environment: Statues
Paragraph 198 is new and is probably the item that has caught the public eye more than any of the proposed changes, given recent stories about the proposed removal of various statues of people associated with the slave trade. The paragraph covers applications for the removal or alteration of historic statues, plaques, memorials and monuments (whether listed or not). It says that in considering those applications, Planning Authorities should have regard to the importance of the retention of the statue in situ and of explaining their historic and social context rather than removal.
Chapter 17: Facilitating the Sustainable Use of Minerals
Changes to paragraph 215 show a move away from encouraging certain types of carbon-based fuel exploration and production. It no longer provides that minerals planning authorities should ‘recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy and put in place policies to facilitate their exploration and extraction’ and instead provides that they should ‘when planning for on-shore oil and gas development, clearly distinguish between and plan positively for the three phases of development (exploration, appraisal and production), whilst ensuring appropriate monitoring and site restoration is provided for.’
So in summary, the number of changes that have been made may not be particularly high, but some of them are of some significance, for example those relating to good design. It will be interesting to see how the revised NPPF will interact with the Planning Bill – once we know what it says, particularly in the light of press reports that the proposals for zoning may not be going ahead after all.
Alastair Lewis is a Partner and Parliamentary Agent and Sarah Wertheim is a Trainee Solicitor at Sharpe Pritchard LLP.
For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.