The focus is back on the NPPF2 following its release last week and everyone has something to say about it. Some of the key points are covered in this update and we hope to arrange a training event shortly so do contact us to register interest. Anyway, we may was well get the obvious out of the way and get straight to it!
NPPF v2
The revised National Planning Policy Framework was published on 24th July 2018 substantially in the same form as the draft released for consultation but not entirely and there are some key differences. The presumption in favour of sustainable development now contained in paragraph 11 has had some tweaks as has part 3 on plan making and of course part 5 on housing. The main points to note in this final adopted version are:
- From November 2018 the new standard methodology for assessing housing need applies.
- The housing delivery test remains and will trigger the presumption in favour of sustainable development (new paragraph 11) where delivery is less than 25% between November 2018 to November 2019 and less than 75% from 2020.
- A requirement to allocate 10% of housing on sites up to 1 hectare.
- New tests relating to green belt boundaries.
- A revised definition of "deliverable" when assessing five year land supply.
- Amendments to the definition of "sustainable development".
- A new test at paragraph 11d enables a neighbourhood plan to outweigh the presumption in favour of sustainable development if the criteria is met.
- A revised test of soundness in relation to plan making but note that the previous Framework applies to plans submitted for examination before 24th January 2019.
- Emphasis on high quality design.
- Promoting airspace development and "effective use of land".
- Social rented has been re-instated in the definition of Affordable Housing which now provides for a minimum of 10% on major sites with exemptions for build to rent, homes for the elderly, student accommodation and self-build. The definition also now includes affordable housing for private rent, starter homes and discount market sales in addition to the existing tenures we all know and love.
- The ability to reassess viability has been limited with the onus on applicants to justify the need for assessments. Assessments submitted as part of the application process should be made publicly available.
- Refusal of Development on highway grounds where there is an unacceptable impact on highway safety is supported.
- So far as the environment goes repowering turbines are now exempt from onshore wind restrictions, enhanced protection exists for ancient woodland and veteran trees, improved measures exist to tackle flood risk, greater protection for local wildlife sites and National Parks, the Broads and AONBs are granted "the highest status of protection" with development limited in these areas.
We have all been inundated with commentary and issues surrounding the revisions. Question marks exist regarding paragraph 74 and what is required to get a position statement agreed, concerns have been raised regarding the failure to update the presumption to take into account the recent court ruling affecting habitat assessments and the Local Government Association has criticised the delivery test saying it punishes communities to name but a few. Time will tell how the policies play out in decision making over the coming months.
Housing delivery
The new NPPF is all about housing delivery and applications for "garden villages" and new towns are on the rise with one being proposed here in Norfolk at the moment. It is therefore worth noting the new provisions regarding development corporations available to local authorities. The recently made New Towns Act 1981 (Local Authority Oversight) Regulations 2018 which came into force on 24th July 2018 relate to the creation and oversight of development corporations created to deliver locally led new towns. A development corporation can promote master plans and local development orders which set the planning framework, has compulsory purchase powers and can borrow to fund the project. The corporation must have a majority of non-local authority members and once the project is complete it is dissolved.
Many Councils are already delivering housing through various development vehicle companies and a case at the end of last year confirmed that a Council may also use a Limited Liability Partnership to deliver these projects as well as providing some useful guidance for local authorities to follow if they are considering creating a joint venture using an LLP. (Peters v London Borough of Haringey 2018 EWHC 192 (Admin).
Housing allocation
Whilst not strictly within the planning remit a noteworthy case has come through the Courts this month which highlights the need for housing authorities to take into account potential discrimination when adopting policies. In R (TW and others) v London Borough of Hillingdon 2018 EWHC 1791 the Court held that a ten year residency requirement in the Council's housing allocation policy indirectly discriminated against persons with the protected characteristic of race under the Equality Act 2010. The Council had failed to consider whether it had struck the correct balance between disadvantage to Irish travellers and the aims of the residence requirement.
In other housing related news the Housing and Planning Act 2016 (Commencement No. 9 and Transitional and Saving Provisions) Regulations 2018 came into force on 5th July 2018 bringing in provisions relating to insolvency of registered providers in Part 4 of the Act, Schedule 5 relating to conduct of housing administration companies and Schedule 6 which amends the moratorium provisions in the Housing and Regeneration Act 2008. In addition the Local Government Homelessness Commission was launched on 6th July which will conduct a series of investigations to develop practical recommendations that will help local authorities to meet their obligations under the Homelessness Reduction Act 2017.
Cases of Interest
Continuing the Equality Act 2010 theme, the High Court quashed a council's grant of planning permission because they had breached the public sector equality duty having failed to have due regard to the impact of granting permission on the elderly and disabled persons whose homes may be demolished as a result in Buckley, R (on the application of) v Bath and North East Somerset Council & Anor 2018 EWHC 1551 (Admin).
The Court of Appeal have laid down principles to be applied when considering the setting of a listed building and the potential effect of a development on that setting in Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer 2018 EWCA Civ 1697. It also reconfirms the primacy of the decision makers planning judgement and reiterates that it is not for the Court to intervene in matters of planning judgement.
The High Court have confirmed that an applicant who agrees to an extension of time for determination of an application is no longer entitled to a refund of the fee, even if the application is not determined within the extended period in Provectus Remediation Limited v Derbyshire County Council 2018 EWHC 1412 (Admin).
In Oates v Wealden District Council & Anor 2018 EWCA Civ 1304 the Court of Appeal confirmed that a decision maker may refuse planning permission for a development which attracts community infrastructure levy where highway impacts are sufficiently serious, even if the authority has stated that it will use CIL receipts for related highway works.
Other news
The last matter to bring to your attention is the Administrative Court Judicial Review Guide (July 2018) which provides important guidance on the procedure and practice which can be found here.
Dates for your diary
- 18 September 2018 – call for evidence on improving the planning appeal inquiries process closes
- 25 October 2018 – consultation for criteria and timing for shale gas production projects included in the NSIP regime and on permitted development rights for shale gas exploration.
If you would like further information or advice on any of the matters contained in this update please contact our Head of Planning, Nikki Fonseka by calling 01603 974860 or email nfonseka@clapham-collinge.co.uk.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
