As alluded to last month, the much-anticipated draft text of the revised National Planning Policy Framework (“the NPPF”) was published for consultation by the Government on 5 March. This represents the largest overhaul of national planning policy since the introduction of the current NPPF in 2012. There now follows a look at some of the key changes proposed.
Paragraph 11 and the ‘tilted balance’
The presumption in favour of sustainable development remains at the forefront of the Framework (although reference to the “golden thread” has been removed). Paragraph 11 (paragraph 14 as it was) has been re-ordered and helpfully better reflects the decision-taking process.
All those familiar with the existing NPPF will recognise the wording of Paragraph 11 d) i. It provides an exception to the straightforward application of the tilted balance where specific policies in the NPPF that protect areas or assets of particular importance provide a clear reason for refusing the development. The new footnote 7 to paragraph 11 d) i (previously footnote 9 to paragraph 14) is now expressed to contain an exhaustive list of such restrictive policies. This should now preclude the argument that has been run by local planning authorities on appeal over the past 12 months that other policies (such as the current paragraph 109 relating to valued landscapes) should be considered as a specifically restrictive policy. The new Footnote 7 also makes clear that this paragraph 11 a) does not refer to development plan policies.
Paragraph 75 of the draft new NPPF provides greater clarity on when the tilted balance will be engaged for housing applications (i.e. where there is no five-year housing land supply (with appropriate buffer) or where the Housing Delivery Test (discussed below) indicates that the delivery of housing has been below 75% of a local planning authority’s requirement over the previous three years. Save for the reference to the Housing Delivery Test the wording of this new paragraph 75 follows the approach of the Supreme Court in Secretary of State for Communities and Local Government v Hopkins Homes Ltd  UKSC 37.
So, with the exception of the helpful amendment to footnote 7 to paragraph 11 d) i there are no significant changes to the application of the ‘tilted balance’. In particular, developers and promoters will be pleased to see the retention of the potential alternative route to the tilted balance where there is a five-year housing land supply but where policies which are most important for determining the application are out-of-date pursuant to the current paragraph 215 (paragraph 208 in the draft new NPPF).
Housing Delivery Test
The Housing Delivery Test (HDT) is simply the following calculation:
HDT (%) = Total net homes delivered over three year period / Total number of homes required over the three year period (where “Net homes” includes student and other communal accommodation)
As referred to above, a proposed new paragraph 75, invokes paragraph 11 d) (the tilted balance) if a five-year supply of deliverable sites cannot be demonstrated (with the appropriate buffer) or where the HDT is substantially (less than 75%) below the housing requirement over the previous three years. This demonstrates the Government’s new focus on delivery and places some responsibility on local planning authorities to play a role in addressing the national housing crisis.
The application of the HDT will provide a potential new route to the tilted balance where a local planning authority’s HDT percentage is significantly below their housing requirement. This is certain to be explored by landowners, developers and promoters in areas where delivery rates are poor.
Building on the “Planning for homes in the right places consultation”, viability assessments should not be necessary at the decision-making stage and should primarily be made at the plan making stage. Consequently, where proposed developments accord with the relevant policies in an up-to-date development plan, there should be no requirement for a viability assessment to accompany the planning application (draft new paragraph 58).
A separate document containing draft Planning Policy Guidance for Viability has also been made available by the Government alongside the draft new NPPF. This highlights the role that viability review mechanisms in section 106 agreements may “help to provide more certainty through economic cycles”. The wording of this section of guidance indicates that such mechanisms should cater for both downward and upward reviews. This raises the prospect that review mechanisms will be sought more frequently by local planning authorities. However, it would appear that the focus on viability mechanisms in the s.106 is at odds with the Government’s proposals to avoid the need for site specific viability appraisals to be submitted with an application.
In a practical sense, the increased focus on viability will require developers and landowners to examine this in more detail at an early stage and this will inevitability influence the way deals are struck to promote or purchase land given the potential inability to argue viability at the application stage.
A further key change is a revised definition of Affordable Housing set out at Annex 2 of the draft new NPPF. This definition now includes starter homes, affordable housing for rent, discounted market sales housing and a wide “other affordable routes to home ownership” category, which includes shared ownership, relevant equity loans, other low-cost homes for sale and rent to buy.
Inevitably this change in definition is going to lead some developers to seek to renegotiate their existing section 106 agreements where such a change would generate additional value and/or better suit the demands of the area in question. As we approach the publication of the new NPPF developers should also look to include flexibility in the definitions of affordable housing in their section 106 agreements.
Provision for affordable housing should not be sought for developments that are not on “major sites” (which is unhelpfully not defined), other than in designated rural areas (where policies may set out a lower threshold of 5 units or fewer).
A key message is that Neighbourhood Planning is here to stay and Paragraphs 13 and 14 seek to reinforce the use of neighbourhood plans within the planning system. Neighbourhood Plans will become fundamentally entwined with national planning policy, including the added ability to amend Green Belt boundaries. However, as the saying goes…..with greater power comes greater responsibility. Local planning authorities will need to establish a specific housing need which Neighbourhood Plans will need to plan for. This should be good for housing delivery as it provides a much-needed stick to ensure that Neighbourhood Plans seek to positively accommodate growth and are not just used as a tool to resist development.
Other notable sections
• Paragraph 69 looks to ensure that at least 20% of the sites identified for housing in local plans are of half a hectare or less although the consultation invites comments on whether this is an appropriate figure;
• Proposed policy to allow the development of exception sites to provide entry-level housing for first time buyers (paragraph 72);
• LPAs should consider imposing planning conditions providing that development must begin within a timescale shorter than the relevant default period where this would expedite the development, without threatening its deliverability or viability (paragraph 78);
• Paragraph 209 will be of particular relevance to local planning authorities progressing their local plans now as it confirms that the policies in the 2012 NPPF will continue to apply to the examination of those plans where they are submitted on or before six months after the date of the publication of the new NPPF.
What happens next?
Consultation on the new NPPF will run until 10th May 2018 with the government intending to produce a finalised NPPF in the summer of 2018.
It is also proposed that a transitional period of 6 months will run from the publication of the new NPPF. During this time the previous NPPF will continue to be applied when assessing development plans. At the end of the transitional period, the new NPPF is proposed to come into full effect in England.
Richard Pigott is a Director and Chartered Town Planner at Planning & Design Practice Ltd
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