Planning frameworks

Planning, development and regeneration briefing

The National Planning Policy Framework one year on: Policy prĂŠcis or real progress?

March 2013

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One year on It is now a year since the National Planning Policy Framework (NPPF) was published with the aims of streamlining the planning system, promoting economic development and encouraging community involvement in the planning process.

In this paper, we examine whether or not the NPPF has delivered on its original objectives.

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We have asked ourselves a number of questions. Has it had any material impact on planning policy? Has it made the planning process clearer and more accessible? Has it succeeded in driving economic growth through sustainable development and in particular, by increasing housing delivery? Has the process and speed of local plan-making improved? Has the NPPF achieved any real change?

In order to answer these questions, we have conducted a high-level analysis of some key indicators, including: residential and retail planning appeal outcomes, the call-in decisions made by the Secretary of State, and a review of the status of local authority plan-making and neighbourhood plans.

In addition to our own observations, we have gathered comments and insight from our clients and major industry bodies to inform our conclusions.

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A residential perspective In the pre-NPPF world, and certainly in the period between the publication of the draft framework and the final version, confusion continued to reign over the status of regional plans. Whilst the rhetoric of the draft NPPF and Planning for Growth was positive, most town halls had latched very firmly onto the spirit of Localism with growing resistance to new housing.

For those brave enough to continue to do battle with the system during this period, an appeal was almost inevitable.

At appeal messages were, however, mixed. Most notable in this time was the approach of the Secretary of State. In stark contrast to the pro-growth agenda, Mr Pickles set about issuing a series of high profile appeal dismissals for large scale housing schemes on green field land, citing prematurity and harm to the local plan making process as a key determinant. Most will be familiar with decisions at Winchester, Lytham and Bude, all of which proposed sizeable housing schemes. The tension escalated when the same approach was later applied to a 280 home scheme at Sandbach (Cheshire East).

The final framework On publication, the framework had not altered fundamentally from the draft version. It appeared to remain largely pro-growth, despite the omission of the controversial default answer of ‘yes’ to development. The presumption in favour of sustainable development remained as did the requirement to ‘boost significantly the supply of housing’. Also included, however, was what appeared to be continued strong protection for nationally recognised assets, including green belt.

Once decisions did start to emerge it was perhaps surprising how quickly consistent trends and approaches started to become apparent. 12 months on we are certainly a lot clearer on the answers to the questions posed above.

Key changes So has the NPPF led to a material change in residential appeal outcomes? The answer is undoubtedly yes.

The overwhelming trend in decisions issued both by Inspectors and the Secretary of State post NPPF is strongly in favour of new housing development.

Inspectors have clearly grasped the pro-

growth agenda set out in the framework and applied it consistently to allow green field housing development where local planning authorities are unable to demonstrate a 5 year housing supply.

Ageing local plan policies seeking to protect areas of countryside outside established development limits have consistently been found out of date and set aside, as have a range of restrictive ‘local’ designations such as green wedges, areas of separation and special landscape areas.

As the Tetbury case highlights, in certain circumstances even designations protected by the NPPF such as Areas of Natural Beauty are not immune to new housing being permitted at appeal, if it can be demonstrated that there is no realistic alternative to meeting housing need. A number of Inspectors have also reached similar conclusions in respect of green belt, but only in circumstances where release of the site has already been contemplated or would appear inevitable at some point in the foreseeable future.

This approach has been generally endorsed by the Secretary of State who in a radical departure from his pre-NPPF approach has shown a real desire to utilise the NPPF to drive forward sustainable housing growth, consistently rejecting arguments about prematurity and issuing positive decisions in the vast majority of cases. In the process he has sent out a number of clear warnings to local planning authorities about the need to progress their local plans and maintain a 5 year supply.

That said, the general pattern of allowing Greenfield housing development, absent a 5 year supply, has not signalled an abandonment of good planning practice nor is it a charter to allow poor development. In general terms protection for green belts and other nationally recognised assets has remained strong and development which is unsafe or has substantive and irresolvable impacts on ecology, heritage or landscape has still been rejected.

Where the Secretary of State has refused housing development post adoption of the framework (just three of the fourteen or so cases he has so far reported on) it has been due to highway safety concerns as at Bingley or concerns about the sheer scale of impact on a particular designated asset, as with the green wedge at Coalville. He has also refused

sustainable development at Bridgwater in Somerset due to the Council having a 5.1 year supply of housing, highlighting the continued fundamental importance of the supply calculation to the overall outcome.

Achieving its aims The framework appears to be achieving on its aims to boost the supply of housing and the approval of appropriate and sustainable development whilst retaining sufficient safeguards to ensure that genuinely harmful and inappropriate development can still be resisted. There are signs too that the emerging appeal trends are starting to influence the approach of local authority committees who seem increasingly to be supporting the recommendations of their officers to approve sustainable sites and bolster supply.

Unpopular appeal decisions have also been responsible in some cases for increased interest in neighbourhood planning as communities respond to the challenge set by the Secretary of State to plan positively for the development of their areas. In all these respects the Framework is arguably succeeding.

Of course there will remain an opposing view that the framework has failed to safeguard the countryside or deliver the spirit of localism.

Looking ahead How long will the current appeal trends continue? Probably for some time yet.

Many, authorities remain some way from adoption of a Core Strategy and very few have the added protection of an allocations Development Plan Document.

It would also appear that very few with adopted core strategies have taken advantage of the 12 month transitional period to make them NPPF compliant. The presence of a core strategy alone will not therefore save those authorities who are still unable to demonstrate supply.

Only when an authority has an NPPF compliant local plan in place (with allocations) and has a demonstrable 5 year supply, should it breathe more easily. That in essence is captured by the Secretary of States recurring mantra – with power comes responsibility. Get a plan, secure supply and regain control.

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The retail position It was widely predicted that the NPPF would not only simplify the guidance set out in PPS4, but would also take a more permissive approach to out-ofcentre development. In practice, the final version largely re-stated the policy position set out in PPS4.

So, one year on, has anything changed?

With regard to retail, the answer is an emphatic yes, for a number of reasons: • First, we have seen new factors affecting the operation of the sequential approach, as one of the key ‘gateway’ tests of the old guidance • Second, the ‘presumption in favour’ has in some cases altered the ‘planning balance’, often in the pursuit of short term investment • Third, the rise of localism and the Government’s reluctance to use its call-in powers has enabled councils to adopt widely different interpretations of the policy based on their local circumstances • Finally, the ongoing structural changes in the retail sector are accelerating and in many cases are outside the scope of any planning control.

Policy in practice – the sequential approach In essence, the policy test set out in paragraph 24 remains largely unchanged, but two factors have affected the way in which it is being applied: • The Dundee Case; and • The town centre pipeline.

Coinciding with the publication of the NPPF, the Dundee Supreme Court Judgement handed down in March 2012 provides important clarification of the meaning of the word ‘suitable’ for the purposes of the sequential approach. The ruling favoured the City Council’s interpretation as meaning “suitable for the development proposed by the applicant”.

The early indications from appeal decisions are that some Inspectors are taking the Dundee case at face value, particularly in respect of clearly defined retail formats such as large food stores, as in Crawley. However, in the Todmarden Case, the Inspector took a different stance, reflecting the continued requirement for flexibility acknowledged in the Dundee Case.

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The other factor which has undermined the effectiveness of the sequential test in some cases is the issue of viability.

Coupled with the NPPF requirement to meet identified needs ‘in full’, there has been much debate about the pros and cons of securing short term investment and development in out-of-centre locations, or ‘safeguarding’ longer term town centre development opportunities.

As with other aspects of the NPPF, the brevity of the policy itself leaves significant scope for interpretation.

Despite these limitations, there are cases where the sequential approach has been upheld as a reason for refusal. The Dundee case does not alter the policy requirement to demonstrate flexibility.

The Impact test The impact test comprises two elements: effects on the vitality and viability of the centre, and effects on planned and committed investment. On the face of it, the challenges facing many high streets suggest there will be more cases of schemes failing the impact test.

Conversely, the strong presumption in favour of development suggests that, on appeal, Inspectors have ‘raised the bar’ in terms of the levels of impact needed to substantiate a reason for refusal, for example, in the Sainsbury’s case in the Wirral.

Analysis of appeal decisions suggests that alleged impacts on committed and planned investment probably represents a stronger reason for refusal, particularly given the precarious state of town centre developments. Where key anchor retailers and/or developers argue strongly that an out-of-centre scheme would be likely to prejudice their plans and can substantiate these claims, this appears to carry significant weight with Inspectors and the Secretary of State.

Call-ins and judicial review Arguably the more significant change post-NPPF is the Government’s reluctance to ‘call-in’ applications, and individual local authorities’ greater autonomy to interpret the policy guidance how they see fit.

This reluctance is evident from looking at the drop in the number of call-ins over the last five years, from 74 in the year 2008/2009, down to only 7 in 2011/2012, and 5 in the first three quarters of 2012/2013. This has been borne out via a number of high profile cases, such as the Oakgate proposal at Monks Cross in York.

In the absence of call-ins, there appears to be more evidence of the use or threat of judicial review. This is particularly evident in the case of food store proposals, albeit that in most cases this option is only likely to delay proposals rather than defeat them.

Overall implications It is difficult to separate out the direct effects of the NPPF from other ongoing structural changes in the retail sector such as the continued growth of out of centre retailing, the polarisation of retail activity to fewer larger centres, and the growth of the internet.

The actual retail policies set out in Section 2 of the NPPF have not changed materially. However, the context provided by paragraph 14, i.e the presumption in favour of sustainable economic development has shifted the balance, and in particular the presumption in favour of development where plans are absent, silent or out of date suggests the scope for securing more out of centre retail consents on appeal.

While its significance may be overplayed, the Dundee case is likely to make it easier for some retail schemes to pass the sequential test. In some cases the absence of viable and deliverable town centre alternatives also suggests it will be easier to secure consents for out of centre development. However, where developers fail to demonstrate flexibility, or proposals are likely to lead to significant impacts, these objections are still likely to be upheld on appeal.

The most noticeable change in the retail planning position post-NPPF is the far greater autonomy afforded to local planning authorities, and the Government’s reluctance to exercise its call-in powers in all but the most extreme cases. The experience to date suggests that where a balanced case is made to the authority to support proposals which deliver wider planning objections? the flexibility afforded by the NPPF has enabled authorities to approve schemes which would have previously been calledin, and in all probability refused.

Looking ahead, the continued asset management of existing out of centre developments, incremental extensions and mezzanines, and the development of ‘dark stores’ and click and collect outlets suggests that a number of channels of further retail growth are largely outside of the control of planning authorities and the NPPF.

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Local plans Leave room for text – 750-1,000 words

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Neighbourhood planning Shortly before the publication of the NPPF, the Localism Act introduced the neighbourhood planning regime, with the aim of providing communities with an opportunity to guide the location of development within their area, influence design and identify locally important assets or projects.

Neighbourhood plans are also intended to provide certainty for developers that schemes will be locally supported and, where Neighbourhood Development and Community Right to Build Orders are put in place, speed up development by bypassing the planning application process. More recently, the Government has pledged where neighbourhood plans are in place, local communities can secure 25% of funding secured through the Community Infrastructure Levy (CIL) for locally identified projects.

A little over a year on and in practice very few neighbourhood plans have been drawn up. To date, slightly less than 400 communities have applied to formally designate their neighbourhood planning area and only 20 draft plans have been published for consultation.

The first referendum on a neighbourhood plan took place in early March in Eden, Cumbria [outcome of this?]. This hardly seems reflective of a speeded up planning system.

The primary reason for the slow uptake appears to be the general lack of interest and understanding of the opportunities for and by local communities. Even where interest and skill levels are sufficient to pursue neighbourhood planning, the process is not guaranteed plain sailing.

called to a Code of Conduct hearing. No evidence of misconduct was found, but the neighbourhood plan remains in draft form, awaiting the outcome of the local plan Examination in Public.

The Malton example does not fit with the Government’s much publicised vision of devolving power back to local communities. Instead it suggests Localism stops with the local council, where powers may only be extended to community forums where the council, and its elected members, are willing to allow it.

However, the case does demonstrate where neighbourhood plans might influence the planning process. The presiding Inspector (at the code of conduct hearing?) allowed the appeal of the proposed retail scheme, referring to the draft neighbourhood plan and its support of the scheme as a material consideration.

Clearly, more time is needed before we can more accurately assess the importance of Neighbourhood Planning, and if it will help or hinder the process of delivering development in the UK.

To go on page three "The NPPF has provided welcome clarity and an impetus on housing delivery, and we have seen the impact this has had on increasingly positive appeal decisions.

But Local Plans consistent with the Framework are still not coming forward as quickly as needed. Too many Plans are being delayed, not least through lack of robust evidence or failure to adopt the Duty to Co-operate. This needs to be the focus over the next twelve months if the need for appeal is going to be reduced and the NPPF is to be properly implemented at the local level. " Keith George, National Head of Planning, Taylor Wimpey

The Malton case

To go on page five

The Malton case highlights the conflict inherent in the neighbourhood planning concept. In March 2011, an attempt by two local parish councils (Malton and Norton) to become one of the first areas to produce a draft plan for consultation was delayed as a result of conflict with the district council and because it preceded the adoption of the council’s own local plan. The conflict primarily related to a proposed retail scheme in part of the neighbourhood plan area and a rival scheme on district council owned land. This conflict eventually led to five of the parish councillors involved with the neighbourhood plan being

“One year on from the publication of the NPPF, only about half of all councils have an up- to-date plan in place. We would continue to emphasise to all in senior local authority leadership that having a local plan is the key way to deliver positive outcomes for your community.”

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Trudi Elliott CBE, Chief Executive of the RTPI

Quotes to come from: BCSC – leave space/box-out on page four BPF – leave space/box-out on page two Grosvenor – leave space/box out on page six

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Conclusions Leave space for around ten bullet points – c. 200 words

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For more information on the National Planning Policy Framework, please contact:

Chris Goddard Head of Planning, Development and Regeneration 020 7911 2202 chris.goddard@gva.co.uk

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