The new version of the NPPF
On 19th December the Government published its long-awaited response to the consultation it initiated in December 2022, which we discussed in the context of senior living, and the resultant revised version of the National Planning Policy Framework ("NPPF"). The process has focussed on some changes that the Government proposed in order to "build enough of the right homes in the right places with the right infrastructure, ensuring the environment is protected and giving local people a greater say on where and where not to place new, beautiful development." However, after all the anticipation, did the updates deliver?
Some of the changes mooted in the consultation draft were ditched, such as those relating to the 'soundness' test for local plans, and the controversial proposal that the past over-delivery of housing by a local planning authority ("LPA") could be taken into account when assessing housing need. Others survived and in some cases were tweaked. However, overall, the significance of the changes is perhaps less than might have been expected.
What are the key changes to the NPPF?
The key changes are as follows:
Flexibility for local authorities in assessing local housing need
The new NPPF says in paragraph 61 that the outcome of the standard method in national planning guidance is an "advisory starting point" in plan making for establishing the housing requirements for an area. This means that some local authorities can deliver more homes than this figure suggests, while others will be able to deliver fewer homes where they can substantiate exceptional circumstances for using an alternative method to assess housing need, including the particular demographic characteristics of their area. The obvious fear here is that this will translate to fewer home being delivered in practice.
Protection of Green Belt boundaries
The Government has stated that it prefers to support the gentle densification of urban areas instead of developing on Green Belt land. The new NPPF advises in paragraph 145 that there is no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated and that if LPAs choose to review and alter Green Belt boundaries (where exceptional circumstances are fully evidenced and justified) then any proposals for changes should be made only through the plan-making process. Once again, the Green Belt proves to be too politically toxic to warrant radical change.
When will LPAs be able to change Green Belt boundaries?
Before concluding that there are exceptional circumstances which justifying changing the boundaries of Green Belt land, the LPA should be able to show that it has:
- made as much use as possible of suitable brownfield sites and underutilised land;
- optimised the density of developments in accordance with chapter 11 of the NPPF; and
- discussed with neighbouring LPAs whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground which LPAs are obliged to produce, maintain and keep up to date in order to highlight agreement on cross boundary strategic issues with neighbouring authorities and other relevant organisations.
Out of character density
Chapter 11 of the NPPF concerns making effective use of land, and achieving appropriate densities of development. In a dilution of the consultation proposal, the new version states in paragraph 130 that in applying these rules to existing urban areas, it should be recognised that significant uplifts in the average density of residential development may be inappropriate if the resulting buildings would be "wholly out of character with the existing area". Evidence of this could be achieved via the use of an authority-wide design code adopted as part of the development plan. Again, a disappointing policy which, although now qualified, may serve to discourage ambitious development in urban areas. Housing delivery, at scale, is essential if meaningful contributions are to be made towards increasing supply.
Annual updates to five-year housing land supply
Paragraph 76 of the new NPPF removes the requirement for those LPAs which have put in place an up-to-date local plan to update annually their five-year supply of land. This change protects them from the presumption in favour of sustainable development.
It also removes the 5% and 10% buffers that could be applied to an LPA's housing land supply, and puts in place a transitional arrangement to ensure that decision making on live applications is not affected.
Any LPAs which are at an advanced stage of plan making with a policy map and proposed allocations towards meeting housing need only have to demonstrate a four-year housing land supply (as opposed to five years) for a period of two years for decision making purposes.
LPAs which do not have an up-to-date local plan will be required to update their supply annually, and if they fail to do so, they will therefore be subject to the presumption in favour of sustainable development. They will also be subject to a 20% buffer added to their housing land supply where housing delivery falls below 85% of its requirement (paragraph 77).
No exporting housing need to neighbouring authorities without mutual agreement
The standard method of assessing housing need was amended in 2020 to include an uplift in need for the 20 most populated English towns and cities. It has been altered again in paragraph 62 of the current version of chapter 5 of the NPPF to clarify that this uplift should be accommodated within those cities and urban centres rather than being exported to the surrounding areas, unless there is a voluntary cross-boundary agreement to do so, or where doing so would conflict with other policies in the NPPF.
Protection from speculative development for neighbourhoods that develop their own neighbourhood plans
Where a neighbourhood plan has been put in place which allocates at least one housing site, that area will be protected from speculative development for five years (an increase from two), in accordance with paragraph 14.
Supporting self-build, custom-build and community-led housing
The updated NPPF introduces in paragraph 73 an exception site policy for community-led housing development, and provides that local authorities should seek opportunities to support small sites to come forward for community-led housing, self-build and custom build housing. In paragraph 70, it also encourages 'permission in principle' alongside other routes to permission (such as local development orders) to remove barriers for smaller and medium site builders in the planning system. It will be interesting to see whether this incentivises more applicants to use the permission in principle route. To date, it has perhaps not been as popular as Government had hoped when it was introduced via the Housing and Planning Act 2016.
Seniors housing and student accommodation
Paragraph 63 encourages the delivery of older people's housing, including retirement housing, housing-with-care and care homes, as well as student housing, by requiring these to be specifically considered in establishing need. This is a welcome change, recognising that a diverse range of housing is essential in order to meet the wide-ranging needs of the population.
Beauty and placemaking in the planning system
The NPPF now uses the word 'beautiful' in relation to 'well-designed places', and in paragraph 140 requires greater 'visual clarity' on design requirements set out in planning conditions to provide certainty for developers. It also supports 'gentle density' through mansard roof development where appropriate, in paragraph 124(e). They say that beauty is in the eye of the beholder, and it is difficult to see how the increased use of such an inherently subjective term can help to bring clarity to national planning policy.
Energy efficiency
A new paragraph 164 has been added to give "significant weight" to the importance of energy efficiency through adaptation of buildings, including through the use of heat pumps and solar panels. There is, though, the usual planning balance to be struck where proposals would affect conservation areas, listed buildings or other relevant designated heritage assets, LPAs should also apply relevant policies. It is encouraging to see energy efficiency gaining express recognition in national planning policy and it is hoped that further climate change requirements (carbon assessments being the next obvious candidate) find their way into future revisions.
How has the Real Estate industry responded to the new version of the NPPF?
The British Property Federation has warned that diluting local housing targets could slow down housing delivery. They also emphasised that uncertainty in planning rules causes delay in the publication of local plans, which in turn deters investment. However, they expressed support for the review Gove announced into the statutory consultee system, calling it a "massive opportunity" to unlock capital if government takes decisive action to modernise the planning system.
Meanwhile, the Campaign for the Protection of Rural England has said that although there was much to welcome in the revised NPPF, there was also disappointment that it does not take steps to provide rural communities with affordable homes, or to sufficiently tackle the climate and nature crises. They had called for a "brownfield-first policy with teeth", alongside targets on social-rent homes in the context of an integrated, spatial framework to tackle climate change, nature's recovery, housing, energy, roads and other infrastructure, such as the long-awaited Land Use Framework from Defra.
Conclusion
Regrettably, the latest NPPF does nothing to ease the long-standing tensions between the pressing need for more homes, and deciding where they should go. While there has been some dilution from the consultation draft, there remains a deep-rooted fear of significant density and building on the green belt.
Clive Betts, Chair of the Levelling Up, Housing and Communities Committee, is clearly not a fan. It is difficult to argue with his assessment on its potential impact on housing delivery, bemoaning the lack of "clarity on how we are to achieve the national housing target of building 300,000 net new homes per year by the mid-2020s. For all the talk of getting tough with local authorities, without mandatory local housing targets, it's not clear how many houses will need to be built in local areas to deliver the national target."
Overall, after much anticipation, the updated NPPF is rather underwhelming. It has the feel of something that was the product of an uneasy political compromise. With few genuinely substantive changes, it seems to focus more on bringing 'clarity' to national policy. That evokes memories of the original NPPF, which arrived back in 2012 with noble aspirations. As Greg Clarke put it, "by replacing over a thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning". Here we are, 11 years and 6 updates in, so it is worth reflecting on whether those aspirations are any closer to being met. Certainly, the admitted need for clarity this time around is instructive. It should also not go unnoticed that we are now up to 78 pages!
What other planning related changes are on the horizon?
The introduction of the new NPPF should not be seen in isolation. Alongside the changes outlined above, there are a broader set of planning changes being pursued, including:
- The Levelling-Up and Regeneration Act 2023 has recently been given Royal Assent but many of its measures require secondary legislation to be enacted before they come into force.
- The CMA's housebuilding study, which we discuss here.
- Gove has announced that in 2024 he will publish a consultation on measures to improve build out rates, and another on constraining the use of "extension of time" agreements.
- He has also said that he will publish a new local authority performance dashboard in 2024, to highlight LPAs good and poor performances.
- Sam Richards, the head of the Britain Remade campaign group, has been asked by the Government to lead a three-month review into the statutory consultee system to understand how best to direct the advice and resources they can offer in order to support speedy and effective decision making.
- Gove has asked the Planning Inspectorate to report instances where a successful appeal is made by a developer against a planning committee decision, and the final decision is the same as the original officer's recommendation. This is intended to discourage planning committees from going against the recommendation of a planning officer. Where the inspector cannot find reasonable grounds for the committee having done so, it should consider awarding costs to the appellant.
- He has asked Christopher Katkowski KC, Cllr James Jamieson, Paul Monaghan and Dr Wei Yang to review the London Plan, and identify where changes to policy could speed up the delivery of homes.
- Following the judgment in the Court of Appeal in the case of Smith v SSLUHC & Ors, the Government is reverting the definition of Gypsies and Travellers used in the Planning Policy for Travellers Sites to that adopted in 2012, with this change applying from today for plan and decision making. The Government intends to review this area of policy and case law in 2024.
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