A Christmas Consultation and a Court of Appeal decision on CIL.
Well, Gove kept his promise. DLUHC's consultation on changes to national planning policy did in fact arrive before Christmas. To be precise, it opened just before 6pm on December 22nd.
The consultation closes at 11:45pm on 2 March 2023.
As I am feeling ridiculously festive,* this post gives a high level overview of the consultation (so you don't have to tackle it before Christmas). The team will publish more detailed posts on its content in the New Year.**
Just for kicks, it also briefly covers a very interesting Court of Appeal case about CIL, which was also handed down this week.
LURB Actually... The Levelling-up and Regeneration Bill: reforms to national planning policy consultation
Let's start with what this consultation is not. It is not a wide-ranging review of the entire NPPF. That will come later. Most likely after LURB achieves royal assent, which is quite some way off yet.
It is also explicitly not a consultation on the detail of secondary legislation that LURB is seeking to introduce - so you won't find any Infrastructure Levy or Community Land Auction provisions here just yet. Nor is there anything about increasing planning application fees. I am sure you must be sorely disappointed.
Instead, the consultation (which is split into fourteen chapters) can be broadly divided into two types of questions:
- Questions about a limited number of immediate changes to the NPPF; and
- Questions designed to inform more detailed policy changes, which will subjected to even more consultation at a later date.
Or, if you are feeling cynical, the stuff the government wants to get on with, and the stuff that is being kicked down the road.... Albeit that the road in question is quite carefully planned out and has an indicative timetable at the end of the consultation document
The Immediate Changes: amendments DLUHC want to introduce in 2023
The more immediate changes to the NPPF set out in the consultation include:
Changes to Housing Requirements
- removing the requirement for local authorities with an up-to-date plan, (i.e. where the housing requirement set out in strategic policies is less than 5 years old) to demonstrate continually a deliverable 5-year housing land supply;
- removing the need for local authorities to include any "buffers" in their 5-year housing land supply calculations (be it 5%, 10% or the 20% penalty applied as a result of failing the Housing Delivery Test)
- amending the NPPF and national planning guidance to allow councils to include historic oversupply in its five-year housing land supply calculations itself;
- extending the protections in para 14 of the NPPF to neighbourhood plans that are up to 5 years old, instead of the current 2 years, and removing the requirement for local planning authorities to demonstrate a minimum housing land supply and have delivered a minimum amount in the Housing Delivery Test these protections to apply.
- making a number of amendments to the text of the opening chapters of the NPPF to make it clear that sustainable development requires "the provision of homes and other forms of development, including supporting infrastructure, in a sustainable manner";
Amendments to the Standard Methodology & Housing Delivery Test
- amending the text of para 61 to re-emphasise the fact that the outcome of the standard methodology is only a starting point - as opposed to a mandatory target - and provide more guidance on the types of "exceptional circumstances" that could justify taking an alternative approach.
- amendments that 'double down' on the 35% uplift for major urban conurbations, making it clear that this uplift should be provided for within the affected boroughs themselves.
- amending the Housing Delivery Test so that it "switches off" or is disapplied if a Council has granted deliverable planning permissions for 115% of their local housing requirement.
Changes to Plan-Making
- watering down the tests for 'soundness' of a local plan by removing the requirement for local plans to be 'justified';
- changing the text of the NPPF to make it clear that a) councils do not necessarily have to meet their housing need in full if it would require building at densities that would change the character of an area; and b) are not required to review green belt boundaries in order to meet housing need (although they still can if they want to);
- requiring local planning authorities to specifically plan for the housing needs of older people - and in particular levels of provision of retirement housing, housing-with-care and care homes.
Beauty, the Environment, and the Green Agenda
- making various amendments to the text of the NPPF to place further importance on the concept of 'beauty' and strengthen the role of design codes - including asking for more references to plans and materials in planning conditions;
- including express policy encouragement for local authorities to allow "mansard roofs as an appropriate form of upward extension" and "recognise their value in securing gentle densification" a policy amendment which feels strangely specific, when compared to many other changes in the consultation;
- A change to the wording of the NPPF to make sure that the food production value of land is reflected in planning decisions;
- specific changes to Paragraphs 155 and 158 of the NPPF to enable the re-powering of renewable and low carbon energy where planning permission is needed, providing that the impacts of any development proposal are or can be made acceptable in planning terms.
- amending the 'old' footnote 54 of the NPPF and introducing an additional footnote to make it marginally easier to bring forward onshore wind (by allowing allocation in a supplementary planning document, or consent to be granted via an LDO or similar);
- added a new provision into the NPPF stating that significant weight should be given to the importance of energy efficiency through adaptation of buildings.
Helpfully, the DLUHC has published a tracked-change version of the NPPF so you can see these change in context, which can be accessed here.
Less helpfully, it appears that one of the major changes will be to the paragraph numbers.... again...so... sorry about that.
Longer term changes in policy direction
The longer term changes set out in the consultation include:
Housing
- proposals for strengthening support for small sites within the NPPF, with a view to increasing overall supply and providing greater opportunities for SME builders;
- proposals for increasing provision of Social Rented affordable homes as part of the overall affordable housing mix that local authorities seek on development sites;
- amending the definition of "affordable homes for rent" to allow non-RPs, such as community land trusts or almshouses, to become providers
- proposals for providing greater support to community-led developments
- proposals on how best to hold developers to account for "past irresponsible behaviour" by either making past behaviour a material consideration or allowing councils to decline to determine applications
- proposals to increase transparency over, and encourage faster, build-out rates on developments;
Environment
- a review of national planning policy to ensure it supports targets set under the Environment Act, net zero and the National Adaptation Programme.
- proposals on the approach that should be taken to carbon assessments and the role planning can play in supporting climate adaptation.
- to bring forward further guidance on BNG and Nature Recovery Strategies; and conduct a review of ancient woodlands and ancient and veteran trees protection in the NPPF;
- to review the NPPF to ensure climate change resilience (including to flooding) policies reflect and take into account emerging work on climate risk assessments.
Plan- Making & National Development Management Policies
- setting out the anticipated transitional provisions from moving to our current plan-making system to that envisaged by LURB
- setting out the timeline for preparing local plans, spatial development strategies, minerals and waste plans and supplementary plans under the reformed system;
- proposals making the case for national development management policies and seeking views on their proposed scope and guiding principles
Levelling- Up
DLUHC is expressly seeking views how planning policies could be included in the new NPPF to support the government's twelve levelling up missions in the Levelling Up White Paper.
In particular in how planning could be used to help:
- boost local economies and economic development across England;
- increase development on brownfield land within city and town centres; and
- place more emphasis on making sure that women, girls and other vulnerable groups feel safe in our public spaces
Conclusion
In short, this is a consultation that covers a lot of ground. Some of which has been widely trailed, but some of which has not. We will provide more detailed commentary in the coming weeks - but there is a lot to mull over. Ideally with a mince pie and a nice glass of wine.
The Court of Appeal on CIL
The other big news of the day is the Court of Appeal decision in R (Braithwaite & Anr) v East Suffolk Council which can be accessed here.
I am not going to spend too long on this case. It is late, I am tired, and Cornerstone has already published a handy little digest of the case, that I recommend reading.
The Court of Appeal decision is interesting read, however, as the Court of Appeal did expressly uphold the findings in Trent v Hertsmere that a liability notice could be quashed if it was not served "as soon as reasonably practicable", finding that:
"Thus a liability notice which is not issued “as soon as practicable” after the grant of planning permission is liable to be quashed. It is not, however, a nullity. There is nothing in the CIL Regulations which enables a late notice to be challenged. The only public law mechanism for such a challenge is by way of judicial review. Whether a late liability notice should be quashed in any particular case is a discretionary decision in accordance with the ordinary principles applicable to judicial review."
Only to refuse the claim, on the basis that it was brought out of time.
The key takeaways from the decision are to make sure that:
- you are challenging the correct CIL Liability notice (as the first liability notice will stand unless it is quashed by the Court or revised by the Council) and
- to make sure that you bring that challenge within the relevant judicial review period.
Merry Christmas!
*our water is back on, the mountain of dirty dishes have been cleaned and I am wearing a Christmas jumper
** if there is anything that you particularly want us to look at - do give me a shout and I will see what I can do.
Topic of this consultation: This consultation seeks views on our proposed approach to updating to the National Planning Policy Framework. We are also seeking views on our proposed approach to preparing National Development Management Policies, how we might develop policy to support levelling up, and how national planning policy is currently accessed by users.
A fuller review of the Framework will be required in due course, and its content will depend on the implementation of the government’s proposals for wider changes to the planning system, including the Levelling-up and Regeneration Bill.”
Key Contact
