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National policy

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National policy

This page provides an overview of the National Planning Policy Framework, and planning policy for traveller sites. There is also a report on one case which has been decided under the NPPF. See also the Localism page in respect of neighbourhood planning.


National Planning Policy Framework (“NPPF”)

Overview

National Planning Policy Framework

The long-awaited NPPF was published on 27 March 2012. It came into effect immediately. The NPPF replaces all but four extant PPSs and PPGs. Those that remain are (i) PPS6 (town centres), (ii) PPS10 and 11 (waste) and (iii) PPS15 (flood risk). All extant Circulars remain in force with the exception of Circular 05/2005 (planning obligations).

The Presumption in Favour of Sustainable Development

Although much of the brouhaha surrounding the draft NPPF concentrated on the presumption in favour of sustainable development, in fact this is one of the most underwhelming parts of the NPPF. It is difficult to see what, if anything, about this so-called presumption in fact amounts to a presumption at all. It appears to have been a case of retaining the language to which the Coalition had committed itself but in substance dropping the thrust of the draft version. One upshot is that the question of what development will benefit from the presumption will be a matter for consideration at the plan-making stage rather than at the planning application stage. The issue of what amounts to sustainable development will not, it seems, be subject to the voluminous litigation and s78 appeals that were forecast.

In its final emanation the presumption has two forms. One applies to the preparation of local plans. One applies to the determination of planning applications. This was not a distinction that was contained in the draft NPPF. It is fair to say that the presumption that relates to the preparation of Local Plans is the most important since the NPPF no longer seeks to tilt the balance away from a plan-led system. As Greg Clarke MP said in his Commons statement, the NPPF “makes explicit that the presumption in favour of sustainable development works through, not against, local plans.” Para. 12 NPPF reflects this.

So far as plan-making is concerned, LPAs are expected to reflect the presumption in favour of sustainable development in their Local Plans. What this amounts to is that LPAs should prepare plans (including reviewing and renewing extant plans) which express policies which positively identify opportunities to meet the objectively-assessed development needs of their area. Objectively-assessed development needs, whatever they are, should be reflected in a permissive Local Plan policy unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits of doing so. The ultimate aim, it seems, is to make it clear which development should be approved without delay.

So far as deciding planning applications is concerned, the presumption means that development proposals which accord with the local plan should be approved without delay. There does not seem to be anything radical about this proposition. It is simply another way of expressing s. 38(6) PCPA 2004. Where the development plan is out of date, absent or silent then permission should be granted unless the harm that would flow from doing so would significantly outweigh the benefit. The crucible of argument will be whether the Local Plan is out of date, silent or absent. It is important to note that the primacy of the plan led system is preserved. Footnote 10 confirms, importantly, that these new policy imperatives can be displaced if material considerations indicate that they should be.

The presumption in favour of sustainable development, in either of its two form, does not apply to development that requires appropriate assessment under the Wild Birds or Habitats Directives: para. 119.

Local Plans

The NPPF envisages a new generation of plans which will be known as Local Plans. Extant local development documents including Saved Local Plan Policies, Core Strategies and Site Allocations DPDs will constitute the Local Plan if they have been adopted already. However there is pressure to review and reconsider such documents in whole or in part. Policies in LDDs adopted before 2004 will continue to attract “full weight” until 27 March 2013 and from then will attract increasingly less weight to the extent that they conflict with the NPPF. The NPPF envisages that Local Plans will be a unified single documents: additional DPDs should only be used where “clearly justified” (para. 153).

Local Plans will need to be tested for soundness in examinations in public. The requirements of soundness are broadly similar but one important new addition is that the plan must meet unmet requirements from neighbouring authorities if it is reasonable to do so and consistent with achieving sustainable development: [para. 182.

Neighbourhood Plans

The Localism Act 2011 does not make it clear that Neighbourhood Plans can only provide for more development than the Local Plan. This is made clear by para. 184 NPPF.

Housing

The requirement for LPAs to secure a five-year supply of deliverable housing sites is retained. In addition LPAs must provide a buffer of 5% on top of this: para. 47. It is unclear what percentage the 5% figure relates to. It could be 5% of (i) the 6-15 year supply or (ii) the 6 year supply or (iii) the 1-5 year supply. If the LPA in question has a “record of persistent under delivery” of housing then a 20% contingency should be added. Again there is ambiguity as to what this means.

The NPPF’s equivalent of para. 71 PPS3 is a deeming provision to the effect that if there is a shortfall of the relevant five-year requirement then the housing policies in the relevant Local Plan are deemed to be out of date: para. 49. That engages the para. 14 presumption of sustainable development and permission should be granted unless (i) material consideration indicate otherwise, or (ii) the adverse effects would clearly and demonstrably outweigh the benefit of granting permission.

Windfall sites may also now be included in the five-year supply provided that there is compelling evidence that such sites have consistently become available in the local area and will continue to provide a reliable source of supply: para. 48.

Open space and playing fields

The NPPF puts in place strict protection for open spaces used for recreation, such as playing fields. Para. 74 provides that existing open space, sports and recreational buildings and land including playing fields should not be built on unless (i) an assessment shows that the space is surplus to requirements, or (ii) the loss resulting from the proposed development would be replaced by equal or better provision in a suitable location, or (iii) the development is for sports and recreational provision. This is a potentially far-reaching policy protection and its extent will depend on the interpretation of “open space”. It would be surprising if it referred to open space other than that which was used for sports and recreation.

Heritage assets

One interesting change brought about by the NPPF is that proposals for development within the setting of heritage assets which preserve the elements of the setting that make a positive contribution or better reveal the significance of the heritage asset should be treated favourably: para. 137.

Green Belts

While the NPPF establishes very strong protection for existing Green Belt boundaries and development proposals for land within the Green Belt, it also provides that “The general extent of Green Belts across the country is already established. New Green Belts should only be established in exceptional circumstances” (para. 82). Examples are the planning of major urban extensions or new settlements. The NPPF seems to be closing the door on the establishment of new Green Belt land.

Cases

Competing sites - sequentially equal

Telford and Wrekin Council v Secretary of State for Communities and Local Government
[2013] EWHC 1638 (Admin)

Summary

Where there were two eligible sites the application of the sequential test did not have to result in a finding that one site was superior to the other. It was open to a decision-maker to find that the sites were sequentially equal.

Facts

P applied for permission, broadly, to demolish existing structures and build a new food store. C was involved in a competing development closer to the town centre, on a site owned by the local authority. The local authority failed to determine P’s application and P appealed to the secretary of state.

The national planning policy framework (NPPF) requires preference to be given to the development of sites in town centres over sites out of town. The planning inspector concluded that neither site had preference. She found that customers from either site would be unlikely to undertake linked walking trips into the town centre because it would take 10 or 17 minutes depending on the site, and generally most people would only be prepared to walk for 5 minutes.

The inspector also overturned a section 106 agreement which provided for the developer to contribute to the cost of off-site highway works should permission be granted. In calculating the contribution to off-site works, it had been assumed that other pending planning applications, also requiring highway works, would be successful and the cost of the works had been apportioned between each development.

The local authority applied to quash the decision of the secretary of state.

Issues

The two main issues related to the following points:
  • Whether the NPPF required a finding that one site was sequentially superior to another;
  • Whether the Inspector was entitled to conclude that she could not be satisfied that the contribution to off-site highway works was necessary as it was based on the false premise that other sites would be granted permission and this included the second interested party’s competing site which would not go ahead if the first site was developed.
Decision

The High Court refused the application by the local authority.

Where there were two or more eligible sites, the application of the sequential test under the NPPF did not have to result in a finding that one site was sequentially superior to the others. It was open to a decision-maker to find that one or more sites were sequentially equal. Circumstances could arise in which it would be wholly artificial for the decision-maker to be compelled to declare one site to be sequentially superior to another. Consideration of sequential superiority goes beyond simply physical proximity and should also include assessment of ease of access more generally. The Court held that the inspector's conclusion that there was no material difference between the relative sequential merits of the competing sites was one which she was entitled to reach.

The extent to which planning obligations such as those relating to the funding of off-site highway works could be taken into account by an inspector in favour of an application was prescribed by statute and regulation. Pooled costs can, in appropriate cases, satisfy the requirements of the Community Infrastructure Levy Regulations 2010 reg.122

However, here the concept of pooled costs did not reflect the reality. If one site was developed, then the other would not be. Therefore, court held that the inspector was entitled to draw the conclusion that she had because the calculation was based upon a false premise.


Planning Policy for Traveller Sites


The Government has issued new planning policy for gypsy and traveller sites. It replaces Circular 01/2006 which the Secretary of State considered to be flawed. The new Policy applies to plan-making and to the determination of planning applications in relation to the provision of pitches and plots for travellers. The definitions of gyspies, travellers and travelling showpeople remain the same.

The new Policy and the NPPF are intended to operate inter-dependently rather than independently. The basic thrust of the new Policy seems to be that the supply of traveller sites should be secured primarily through the plan system and should rely less on individual planning applications in relation to unallocated sites.

For the first time LPAs are required to identify a five-year supply of deliverable sites for both gypsies and traveller pitches and travelling showpeople plots (para. 9). The five-year supply should address the likely permanent and transit site accommodation needs of travellers. Neighbouring LPAs are expected to work collaboratively with one another in this exercise but it would appear that the ODPM biannual caravan count is to be discontinued. The localism agenda means that the new Policy places the evidence-gathering and target-setting responsibility onto LPAs.

The five year figure will be based on an annualisation of locally set targets. They in turn will be set in response to locally assessed pitch needs. LPAs will need time to renew their evidence base relating local needs. The Policy contemplates that this exercise will be undertaken within the next 12 months since if, after 12 months from 27 March 2012, LPAs cannot demonstrate an up to date five-year supply of deliverable sites, this will be a significant material consideration in any subsequent planning application for temporary planning permission. The new Policy expressly confines this consideration to applications for temporary planning permission but it would seem logical to extend it to applications for permanent permission.

In Smith v Secretary of State for CLG (unreported, 16 March 2012) Ouseley J held that the requirement in para. 71 of PPS3 (favourable treatment of planning applications for housing where there is a shortfall in relation to the five-year supply) did not extend to the provision of gypsy and traveller pitches. The new Policy has brought gypsy and traveller provision in line with the provision of conventional bricks and mortar housing in terms of the five-year supply. It is possible therefore that if there is a shortfall in relation to the 5-year supply of traveller sites the presumption will be engaged as the plan will be deemed to be out-of-date under para. 49.

The NPPF is also material to planning for traveller sites. The presumption in favour of development, in both of its forms, applies to traveller sites. Since it is anticipated that LPAs will identify local pitch needs and allocate land on a rolling 5-year basis, it follows that the presumption will bite wherever there is a planning application for a traveller site in relation to allocated land. Permission should then ordinarily be granted in accordance with para. 14.

The new Policy does not erode the high degree of protection from traveller sites enjoyed by land in the Green Belt. It is acknowledged that traveller sites (temporary and permanent) in the Green Belt are inappropriate development and must be justified by exceptional circumstances. The new Policy makes it clear that if Green Belt land is to be allocated to meet the need for gypsy and traveller sites then this should take place through the plan-making system and not in response to planning applications.


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