In July 2018, the Government published the second version of the National Planning Policy Framework (‘NPPF’). This evolved a number of policies that had been found in the previous version of the NPPF (published March 2012) and introduced some new policies. However, this second iteration of the NPPF was not without its faults.
The Ministry of Housing, Communities and Local Government (‘MHCLG’) were quick to acknowledge that the 2018 version of the NPPF did contain some unclear guidance on critical issues pertaining to 5-year housing land supply and the Habitats Directive. Thus, in October 2018, the MHCLG published a technical consultation into planned updates to the NPPF, to correct perceived drafting errors or unintended consequences arising from the 2018 version.
On 19th February 2019, the MHCLG published this ‘updated’ version of the NPPF.
The first thing to note about this latest NPPF is that the MHCLG provided no indication as to when it was to be published. It remains unclear as to why the MHCLG do not provide deadlines as to when they are going to publish significant new national policy. Indeed, the writer found himself in the middle of a housing inquiry when the 2018 version of the NPPF was published unannounced. Similarly, the writer was deep in preparation for an inquiry when the latest version was published. I know of other barristers who had cross examined for a whole day on 5 year housing land supply, only to check their emails at the end of the day and realise that the whole day had been pointless owing to this new national policy. One wonders in future whether the MHCLG could provide deadlines so as to give the planning industry an opportunity to prepare for the changes?
In any event, notwithstanding the absence of any advance warning as to when the latest version of the NPPF would be published, it is fair to say that it did not contain any surprises. The changes it made were all issues that had been sufficiently flagged up through the technical consultation. They involved essentially 4 changes.
The latest version of the NPPF has entirely replaced the 2018 version of the NPPF, almost as if the 2018 version did not exist. Indeed, paragraph 214 of the NPPF now says, ‘The policies in the previous Framework published in March 2012 will apply for the purpose of examining plans …’ Thus, the latest version of the NPPF should properly be considered version 2.1 of the NPPF, rather than the third iteration of national planning policy.
Paragraph 11 of the NPPF contains the presumption in favour of sustainable development. Where a proposal is in conflict with the development plan, paragraph 11(d) of the NPPF is engaged where there are no relevant development plan policies or the most important policies for determining the application are out of date. This engages the ‘tilted balance’ in favour of granting planning permission. This remains the key argument for bringing forward windfall housing sites during the plan period.
However, prior to the latest update to the NPPF, it was considered that the tilted balance within paragraph 11(d) could not apply in respect to any development that required an appropriate assessment, owing to paragraph 177 of the ‘old’ NPPF, which read as follows:
- The presumption in favour of sustainable development does not apply where development requiring appropriate assessment because of its potential impact on a habitats site is being planned or determined.
Typically only a small number of sites required an appropriate assessment, where it was considered that they would have an adverse impact (either individually or collectively) on a European protected site. However, following the ruling of the European Court of Justice on case C232/17 (People over Wind, Peter Sweetman v Coillte Teoranta), this significantly expanded the application of paragraph 177 of the NPPF to a wide array of sites.
Indeed, the 2018 version of the NPPF meant that any site that could cause potential harm to a European protected site could not rely on the presumption in favour of sustainable development – even if compensation measures could address this harm. As recognised by the MHCLG in the Technical Consultation, this ‘was not the intention of the policy’.
Thus, the latest version of the NPPF has amended the text of paragraph 177 of the NPPF, such that it now reads as follows:
- The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site.
Accordingly, if an appropriate assessment has been conducted and has concluded that the development does not adversely affect the integrity of a European protected site (including having regard for mitigation), it follows that under the revised NPPF the tilted balance is not disapplied. This will serve to significantly reduce the amount of sites that fall foul of paragraph 177 of the NPPF.
Local Housing Need
The latest version of the NPPF has changed the definition of ‘local housing need’ and made two minor variations to footnote 37 of the NPPF. These changes make it beyond clear that, save for when considering new local plans, there can only ever be one housing requirement figure in any local planning authority.
If the development plan has been adopted within the last 5 years, the relevant housing requirement is that established within the development plan.
If, however, the development plan has been adopted over 5 years ago and has not been subject to a review, the relevant housing requirement is determined by the application of the standard method (which is an objective mathematical exercise).
The 2018 version of the NPPF was unclear as to whether one could argue for a justified alternative to each of the above figures where exceptional circumstances applied. However, the latest update has made it clear that a justified alternative to the above figures is only relevant when considering new strategic policies. In any other context, the housing requirement figure cannot be a source of debate – albeit undoubtedly some barristers will still seek to argue the point.
The latest version of the NPPF has amended the definition of deliverable within the glossary to the NPPF. The reader did not regard the last definition as requiring clarification, it always being clear what it was saying. However, the new definition splits the text up somewhat to create two closed lists of what sites can be considered to be deliverable and makes it somewhat clearer. The new text reads as follows:
Deliverable: To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:
- a) sites which do not involve major development and have planning permission, and all
sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).
- b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.
The publication of the latest version of the NPPF was also followed by the publication of the housing delivery test and consequent updates to the online National Planning Guidance.
These changes should generally be welcomed by the industry, simply on account of them providing greater certainty and integrity in how national policy ought to operate.
Planning Barrister at Kings Chambers