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A Christmas Miracle: Consultation On Proposed Reforms To National Planning Policy – Real Estate


‘Twas the night before Christmas (well, almost, it was 22
December) and the Department for Levelling Up, Housing &
Communities delivered on Michael Gove’s promise to publish revisions to national
planning policy for consultation.

The consultation came in the form of a consultation on proposed reforms to national
planning policy
and indicative mark-up of the National Planning Policy
Framework (NPPF
). Despite the pre-Christmas promise, this is
not the prospectus which was expected last summer – we are
now told that the wider review of the NPPF referred to in the Policy Paper accompanying publication of the
Levelling Up and Regeneration Bill (LURB) will follow once the LURB
is enacted.

At first glance this consultation seems comprehensive, but, upon
closer inspection, it’s only really a patchwork prelude: apart
from the NPPF mark-up, most proposals are thematic and for future
consultation. The consultation itself is a combination of: a recap
of the LURB; immediate proposals for revising the NPPF (in the
indicative mark-up); a broad outline of proposals for the wider
review of the NPPF; and an outline of the principles governing the
new National Development Management Policies (NDMPs) which are
being introduced by the LURB. Nevertheless, the overall direction
of travel is clear and there is plenty to mull over.

What are the key points arising out of the consultation
document? Eight broad themes include:

Plan-led system – it is intended that,
under the new system, local plans will be produced more quickly and
with simplified contents. Local authorities will have to start work
on new plans (at the latest) five years after the adoption of their
previous plans, and the new plan must then be adopted within 30
months. Authorities will also no longer be permitted to issue
Supplementary Planning Documents, but can issue “supplementary
plans” which will be given the same weight as the existing
local plan.

Housing supply – to incentivise the
faster adoption of local plans (and thereby reduce
“unplanned” development and reliance on the presumption
in favour of sustainable development), the government is proposing
to remove the requirement for local authorities with an up-to-date
plan to demonstrate continually a deliverable 5-year housing land
supply. Also, the government is proposing to remove the current
requirement on local authorities to include a buffer of 5%, 10% or
20% on top of their housing land supply (as currently required by
paragraph 74 of the NPPF) and for oversupply of homes early in the
plan period to be taken into account when calculating housing
supply. The government is also consulting on a mechanism by which
the Housing Delivery Test would be “switched off” where a
local planning authority can demonstrate that there are
“sufficient” deliverable permissions to meet the housing
requirement set out in its local plan.

Strengthening the status of neighbourhood plans
– the government is proposing additional protections for
neighbourhood plans in circumstances where a local planning
authority’s policies for the area are out-of-date. First, the
government is proposing to extend protection to neighbourhood plans
that are up to five years old instead of the current two years.
Second, the government is proposing to remove tests which currently
mean local planning authorities need to demonstrate a minimum
housing land supply and have delivered a minimum amount in the
Housing Delivery Test for Neighbourhood Plans to benefit from the
protection afforded by the NPPF. These proposed changes can be seen
in paragraph 14 of the indicative draft NPPF.

Soundness test – the soundness test for
local plans is proposed to be simplified such that local plans no
longer need to be “justified” and objectively assessed
housing need would only need to be met “so far as
possible”. Whilst presented as a simplification of paragraph
35 of the NPPF, the effect undoubtedly constitutes a dilution of
the soundness test.

National Development Management Policies
– the purpose of NDMPs is to give statutory weight to issues
of national importance/application. The consultation envisages that
the NDMPs will cover areas such as conserving heritage assets,
preventing inappropriate development in the green belt, net zero
policies, and restricting development in areas of high flood risk.
This will enable local plans to be slimmed down by removing issues
of national/general application and will make plans more
locally-relevant and focused. NDMPs will carry the same weight in
decision-making as local plans and neighbourhood plans, and may
also constitute material considerations in Nationally Significant
Infrastructure Project decisions. NDMPs will carry greater
weighting where there is conflict between them and development
plans. The policies themselves will be designated by the Secretary
of State after further consultation.

Onshore wind – in the light of the
current energy crisis, the government has proposed amendments to
paragraphs 155 and 158 of the NPPF to provide policy support for
the re-powering and life-extension of existing onshore wind farms
and other renewable/low carbon energy where the impacts are or can
be made acceptable in planning terms. The government has also
proposed amendments to footnote 63 of the NPPF which are apparently
intended to encourage new onshore wind development – however,
whilst the language has softened somewhat (eg impacts now need not
be “fully addressed” but be “satisfactorily
addressed”), the nebulous concept of local community
“support” has been introduced and it remains to be seen
what this could mean.

Renewed emphasis on “beauty”
“beautiful” development is portrayed as both a means and
an end – more likely to be supported locally and thus
consented, but then building pride in place and positively
affecting health and social wellbeing. The NPPF has been tweaked in
several places to emphasise that places and buildings should not
only be well-designed but beautiful. To support this, local
planning authorities are encouraged to ensure planning conditions
reference clear and accurate plans and drawings that provide visual
clarity about the development, and are clear about approved use of
materials. Both changes are more an exercise in emphasis than
change from current practice.

Local design codes – the consultation
reiterates that the LURB (currently before Parliament) will require
local planning authorities to produce design codes for their areas,
setting clear minimum standards on, for example, height, form and
density of development. These will have statutory status, either as
part of local plans or supplementary plans, and are meant to
empower communities to have more say on the appearance of their
areas – though whether these end up being just another hurdle
for developers to clear will remain to be seen. One type of
development the government is already keenly promoting through a
surprisingly detailed change to the NPPF is mansard roof
extensions, for which the revised NPPF offers full-throated
support, provided their external appearance “harmonises with
the original building”.

What next?

The consultation closes on 2 March 2023. The changes to the NPPF
shown in the indicative mark-up will be implemented as soon as
possible after that in spring 2023, followed by the promised
wider-review of the NPPF later this year. Michael Gove is aiming
for Royal Assent by March 2023, with a view to the reformed
planning system going live in late 2024.

There is a lot of work to be done if comprehensive, effective
reform of the system is to be achieved in that time. DLUHC will be
kept very busy, particularly if the EU Retained Law (Revocation and
Reform) Bill continues its progress unamended through Parliament,
as will LPAs themselves in getting to grips with the new system as
it is implemented.

Where does this leave the planning system? Fears have been
expressed that the current, piecemeal changes to the NPPF could
undermine rather than boost the supply of the right houses in the
right places – reinforcing “nimbyism”, slowing down
plan-making and undermining LPAs ability to plan well for their
areas whilst increasing pressure on already stretched teams. Many
authorities are pulling their local plans in response to the
proposed changes. However, the importance of the planning system to
solving many of the country’s challenges is clear, as
recognised by the recent Final Report of the Mission Zero Independent
. It’s in everyone’s interest to ensure that
planning reforms brought forward are designed and implemented well.
All involved in development should consider responding to both this
consultation and those to come later this year.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.


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