09 March 2018

By Stephen Humphreys and Gary Soloman

1. Revisions to the National Planning Policy Framework

The government has published the long talked about revision to the National Planning Policy Framework (NPPF). This revision is the subject of a consultation that opened on 5 March in conjunction with speeches from the Prime Minister and the Secretary of State for Housing and Local Government. The intention of the changes is predominantly to speed up the delivery of housing development in England. It also implements around 80 previously announced reforms (including the 2017 Budget) and consolidates 10 written ministerial statements.

What does it say?

Much of the content is based on the outcome of previous consultations, including the housing white paper ‘Fixing our broken housing market’ (February 2017) and ‘Planning for the right homes in the right places’ (September 2017). The revised document also contains new, previously unseen, policies. The government is also simultaneously consulting on reforms to developer contributions (CIL and s.106). We seek to highlight some key points to help inform developers, landowners and local authorities on both of these consultations.

NPPF – Enabling ‘more people to meet their aspiration of a home of their own’

Most changes are proposed to encourage housing development to ‘enable more people to meet their aspiration for a home of their own'. These include:

  • encouraging neighbouring local authorities and other stakeholders to work together, crystallising their policy positions in statements of common ground
  • introducing a new standard method for calculating housing need
  • introducing the need for all local planning authorities (LPAs) to set a housing delivery figure – shifting the emphasis from the number of planned homes to the number of delivered homes. The figure will be determined as a percentage (based on number of homes delivered divided by the number required). While the five year housing land supply test still exists, the shift in emphasis to delivery could mean that the housing delivery test replaces this requirement (and is focused on more at local plan examination, appeals and for planning applications). The draft provides that if the housing delivery figure is below 75% over the previous three years then the policies in the local plan will be considered out of date.
  • more emphasis on ‘strategic priorities’ and requiring LPAs to prepare strategic plans (i.e. policies which look over 15 years ahead) on which local plan policies can be worked around
  • requiring LPAs to include in their local plans details of the contributions expected in association with particular sites and types of development. This includes setting the levels and types of affordable housing contribution, along with other infrastructure.
  • clarifying the definition of sustainable development and when the presumption in favour of sustainable development will apply
  • encouraging greater use of small sites
  • encouraging applicants to engage at an early stage with both statutory and non-statutory consultees
  • encouraging local authorities to consider imposing shorter time limits for implementing planning permissions (2 years suggested). If the government is keen to ensure speedy implementation, a change to legislation would seem more appropriate
  • making more effective use of land (e.g. supporting the conversion of under-utilised land, considering reallocating land and using minimum density standards) and refusing applications that do not make efficient use of land where there is a shortage of land to meet housing need
  • amending green belt policy to enable greater use of brownfield land for housing in the green belt
  • providing that new development should integrate with existing businesses (e.g. music venues) and that the incomer (or 'agent of change' should provide suitable mitigation (e.g. sound-proofing) before the development has been completed where there is the likelihood that any statutory nuisance would arise.

Interestingly, the revised text about creating larger scale development (e.g. new settlements or urban extensions) no longer refers to the principles of garden cities and instead to ‘meet identified needs in a sustainable way’.

Industry and infrastructure

Turning to industry and infrastructure, the draft NPPF:

  • highlights the importance of supporting business growth and improved productivity
  • provides a new approach to viability, including the expectation that viability assessments will be publically available. This links to the consultation on developer contributions (see below)
  • amends the approach to the sequential test for out of town sites so these are considered against sites which are ‘expected to become available within a reasonable period’
  • clarifies that endorsed recommendations of the National Infrastructure Commission can weigh in the planning balance as a material consideration
  • includes an expectation that transport proposals should prioritise pedestrian and cyclist movements
  • recognises the importance of maintaining a network of general aviation facilities.

Environment and renewables

Looking at some environmental aspects in the revised NPPF:

  • encourages strategic approaches to strengthening existing networks of habitats 
  • seeks to align planning policy with the government’s 25 Year Environment Plan
  • ensures planning policies and decisions take air quality into account
  • clarifies that development resulting in loss or deterioration of ancient woodland should be wholly exceptional
  • incorporates the written ministerial statement on on-shore wind.

The consultation also asks for views on whether there should be changes to the planning policy for waste, in light of the proposed changes to the NPPF.

What happens next?

The consultation on the NPPF ends on 10 May and the government intends to publish the new NPPF before the summer, subject (of course) to the responses to the consultation. There will be some transitional arrangements once the new NPPF is published and these are also within the consultation.

The government has also provided that they will undertake a root and branch review of the planning inquiries process, though there are no timescales given on this yet.

2. Developer contributions

Sitting alongside the consultation on the NPPF is a consultation on reforming developer contributions to affordable housing and other infrastructure. This consultation was pre-empted in the 2017 budget and is informed by the independent Community Infrastructure Levy (CIL) review undertaken in February 2017. It looks at problems with the CIL regime and contributions made under s106 obligations.

What does it say?

Rather than toning the CIL regime down, the consultation focuses on front-loading the contribution requirements (including setting these in local plans), giving LPAs more flexibility in their approach towards CIL and (to an extent) looks at limiting the use of s.106 agreements. The proposals include:

  • allowing LPAs to set CIL charging schedules so that figures are based on the existing use of land so that the practical uplift in value of the land is accounted for. In practice this could mean that a larger CIL contribution would be payable when developing green field land as opposed to another more valuable use e.g. industrial or offices
  • within the CIL regime, reduce the amount of evidence required when setting CIL, e.g. by also using viability evidence for plan making to set CIL levels
  • reduce the amount of consultation undertaken by the local authority when setting CIL through the production of a statement of engagement which would then be considered at the examination stage of the CIL schedule
  • to lift the current pooling restriction on s.106 contributions. This would apply to LPAs who have CIL in place, to LPAs who do not have CIL and where it would not be viable to have it and in relation to specific strategic sites designated by the LPA. The restriction would apply to LPAs who do not have CIL in place as an incentive to progress a schedule
  • to remove the need for LPAs to have a regulation 123 infrastructure list. This would be replaced with an infrastructure funding statement which sets out how spending of any forecasted income from both CIL and section 106 contributions over the next five years will be prioritised. This document would also monitor funds received. The intention of this document is to give local people more clarity on how contributions are spent and to give LPAs flexibility on their spending priorities
  • clarifying how CIL is charged for planning permissions which are amended or varied
  • indexing CIL for residential development to the House Prices Index (HPI) rather than build costs
  • enabling combined or joint authorities to set up a strategic infrastructure tariff. This is based on the similar system in London where the mayor can raise funds across boroughs, for example where the mayor recently raised funds towards Crossrail.

While not a current proposal, the government has undertaken to look at whether developer contributions should be set nationally, making them non-negotiable. This intention is repeated three times in the consultation, although it is unclear what legal changes would need to be made to make it effective (perhaps an amendment to s.106 itself?).

What happens next?

This consultation on developer contributions proposes some significant changes and looks to be a first step towards further reform in respect of financial contributions for developments. It might be surprising that the government is sticking with CIL given the low LPA uptake and inflexibility it gives. The intention looks to be to combat these issues and provide more flexibility and transparency around CIL and s.106. It will undoubtedly take a number of years to see if these changes deliver what they are meant to.

For more information on this topic, please contact Gary Soloman or your usual Burges Salmon contact.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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