Consultation on National Planning Policy Framework

The long awaited proposals by the government to overhaul the National Planning Policy Framework have finally arrived. Claire Fallows provides an overview.

Six years on from the introduction of the National Planning Policy Framework, the updating of the government’s flagship planning policy document is sorely overdue. Successive administrations have resisted temptations to tinker with its content, but change is now required. The government’s core intention, as ever, is admirable: to maximise the use of land, speed up the delivery of housing after the grant of permission and yet strengthen green belt protection. But what of the detail? Some of the key proposed changes are summarised below.

The battle between developers and authorities as to whether or not those authorities can demonstrate a 5 year housing land supply, such that in certain circumstances a presumption of sustainable development tilts the decision-making balance in favour of the applicant, is set to continue. A standardised approach to calculating housing need may however help increase transparency. It is also proposed that authorities will be able to ‘fix’ their 5 year housing land supply for a one year period, following adoption of a recent plan. Subsequently, authorities can produce an annual position statement with the same result, but this will require engagement with developers and input from the Secretary of State. This may help cut down the number of appeals founded on this issue.

The presumption in favour of sustainable development will also apply where, over a three year period, authorities deliver below 75% of a housing requirement set by a new housing delivery test. A transition of 25% in 2018 and 45% in 2019 will however provide a window of flexibility for authorities. Further, the presumption itself has been tinkered with and no doubt case law will follow on the new wording, including what represents the “most important” policies in determining an application or a “clear reason” for refusal.

Speedier delivery is sought once permission is granted. Authorities are encouraged to require development to commence within a shorter period than the default 3 years, except where deliverability or viability would be hindered. That ignores the time involved in obtaining reserved matters, discharging conditions and otherwise getting sites ready for implementation – topics that will continue to be debated hotly as part of the Sir Oliver Letwin review of land banking.  More token starts on site to preserve planning may result.

Substantial weight is to be given to the value of using brownfield land for new homes. The devil is always in the detail however - it is usually the design and impact of a scheme rather than the principle of brownfield redevelopment that leads to refusal.  Proposed policy changes state that the desirability of maintaining an area’s prevailing character (including residential gardens) remains a relevant consideration. Changes of use of redundant employment and other land uses are to be supported, but the increasing pressure on industrial land in the south east in particular may make authorities reluctant to sanction substantial releases.

Higher density development is to be supported. Where there is a shortage of land to meet housing needs, authorities should seek to optimise the use of land including potentially through minimum density standards.  Helpfully, a ‘flexible’ approach to policies relating to daylight and sunlight is promoted, it remains to be seen as to whether that will have an impact.

Upward extensions to residential and commercial premises are proposed to gain national policy support but only where consistent with the prevailing roofline and subject to design. A potential permitted development right to build upwards, dismissed by previous administrations, is however back on the table for further consideration.

Green belt protection is to be strengthened so that specific criteria must be satisfied before exceptional circumstances justify a change in boundaries. This is perhaps disingenuous given the pressure on authorities with significant green belt constraints to deliver new homes. Express reference is made to the potential for new settlements and major urban extensions to be accompanied by new green belt areas.  Plans may propose affordable housing for local needs within the green belt.

The need for a greater mix of housing is recognised. 10% of homes on major sites are proposed to be available for affordable home ownership, with limited exceptions. Controversially, authorities are required to support developments on unallocated sites outside existing settlements which offer a “high proportion” of homes for first time buyers or renters and where there is a local need. Such developments must be proportionate in size to the existing settlement and not compromise specific protections set out in the Framework, but is contrary to the principle of a plan led system.

As expected, the development of small sites is promoted to speed up delivery in the short term and boost opportunities for smaller developers. 20% of allocated sites should be small sites. This is likely to prove unpopular, given the work involved in identifying such sites and the number of objections that they can attract due to impacts on neighbours. Authorities are also asked to work with developers to encourage the sub-division of larger sites, but there is a clear conflict with developers’ obvious business need to maintain a steady pipeline of houses to build out.

New national guidance on viability assessment is also proposed. Following recent trends towards transparency, the draft Framework amendments suggest that all such assessments should be publicly available. Review mechanisms, now common in London, are actively supported in certain circumstances including multi-phase developments. Benchmark land value should be based on existing use value plus a premium for the landowner. A return for developers based on 20% of gross development value is mooted, with exceptions.

There is also a long awaited consultation on reforms to the community infrastructure levy to reduce complexity and increase transparency. Further consideration is given to lifting pooling restrictions on strategic sites. However, in the longer term, the government is considering a number of options for developer contributions including a new system with non-negotiable contributions set nationally.

Overall, the proposals in their totality could help introduce more clarity and certainty into the system, but there will be unintended consequences. The government must move swiftly to respond to the consultation and publish the final Framework, associated guidance and regulatory changes to minimise further uncertainty.

However, it remains to be seen whether authorities will take sufficient difficult and potentially unpopular decisions that must underpin a step change in housing delivery and, if they do not, whether the government truly has the appetite and resource to step in. The consultation closes on 20 May 2018.

This article was written by Claire Fallows. For more information please contact Claire on +44 (0)20 7427 1046 or at claire.fallows@crsblaw.com.