Residential Developments

The Government has now amended the NPPF. It released a draft in March 2018, and the final revised NPPF was released on 24th July 2018.

It’s 73 pages long so, to avoid you needing to read it all, this note summarises the main changes from the March 2018 draft, and then sets out all of the changes (at least all that I have spotted!) in more detail.

Summary of main changes

• It is now clear that the paragraph 11 tilted balance is triggered either where an LPA cannot demonstrate a five year housing land supply or where the Housing Delivery Test indicates that delivery was below 75% of the requirement over the previous three years.
• The relationship between neighbourhood plans and the paragraph 11 tilted balance is all explained in paragraph 14, without the additional reference to paragraph 75 in the draft.
• The NPPF now refers to strategic and non-strategic policies rather than strategic plans and local plans.
• Development plans should have at least a 15 year timeframe, except for town centres, where the timeframe is ten years.
• A number of references in the draft to mitigating significant environmental effects have been removed in the light of the People over Wind and Sweetman ECJ Judgement.
• It is now necessary for plans to seek to meet the area’s objectively assessed needs, rather than meeting these needs “as much as possible”.
• The reference to viability assessments is toned down. Where it formerly said “no viability assessment should be required” “where proposals for development accord with all the relevant policies in an up-to-date development plan”, it now gives the developer the discretion to provide one and allows the decision maker the discretion to decide what to do with it.
• The requirement to allocate land for small sites has been watered down. It is now necessary to provide at least 10% of the housing requirement to be on “small and medium sized sites” larger than one hectare “unless it can be shown, through the preparation of relevant plan policies, that there are strong reasons why this 10% target cannot be achieved”.
• All references to primary and secondary shopping frontages have been deleted.
• The protection given to general aviation airfields has been strengthened.
• The importance overnight lorry parking is now recognised.
• Refusing a proposal on highway safety grounds has been made a little easier.
• All references to European habitats and legislation have been deleted.
• Design has been strengthened, with a new introductory paragraph explaining its importance, a reference to dealing with design early and a reference to public involvement.
• It is now a little harder to alter the Green Belt through the development plan. The NPPF now refers to a need to fully evidence and justify exceptional circumstances, and for the authority to be able to demonstrate that it has examined fully all other reasonable options, rather than simply examining this fully.
• Restrictions on wind energy developments have been lifted a little.
• Major development in the context of AONB proposals is now explained in a footnote.
• It is now clear that great weight should be given to the conservation of heritage assets irrespective of whether the harm is substantial, total loss or less than substantial.
• The transition arrangements clarify that plans submitted before 24 January 2019 will be based on the previous NPPF.

Detailed Changes

1. Introduction

Paragraph 3 now explains that “The Framework should be read as a whole (including its footnotes and annexes.”

Paragraphs 4 and 5 have been swapped around.

2. Achieving Sustainable Development

All references to “strategic plans” have been replaced with “strategic policies”, starting with paragraph 11.

Paragraph 11.b) now refers to “objectively assessed needs for housing and other uses” rather than “other developments”

Footnote 6 (formerly footnote 7) has been reworded:

• The clarification that policies in the Framework do not also refer to development plan policies remains, but is moved forward in the text;
• The NPPF has gone through its own Brexit, starting with footnote 6. All reference to “European sites” or “the Birds and Habitats Directive” is replaced by “habitats sites” defined in paragraph 176 and in the glossary.

Footnote 7, explaining the Housing Delivery Test, has been added.

The previous ambiguous references to neighbourhood plans “being brought into force” have been clarified. Paragraph 12 now simply refers to “neighbourhood plans that form part of the development plan”, and the glossary’s definition of development plan includes “Neighbourhood plans that have been approved at referendum are also part of the development plan, unless the local planning authority decides that the neighbourhood plan should not be made.”

Paragraph 14, which explains how the tilted balance now contained in paragraph 11 is to be interpreted where a neighbourhood plan is in place, has been reworded.

3. Plan-making

Paragraph 16, which explains how development plans should be prepared and what they should contain, is updated at criterion c). This now requires engagement to be “effective” rather than “meaningful” and for the engagement to include infrastructure “operators” as well as “providers”.

Paragraph 17 is reworded, referring to the need for the development plan to include “strategic policies” rather than implying that a “strategic plan” is needed.

Starting with paragraph 18, all references to “local policies” are replaced with “non-strategic policies”. Paragraph 18 also clarifies that neighbourhood plans “contain just non-strategic policies”.

Paragraph 20 has been reworded, but not materially as far as I can tell.

Paragraph 21 refers to “non-strategic policies” rather than “local policies”.

Footnote 14 is new. Where paragraph 22 refers to strategic policies looking ahead over a minimum 15 year period, footnote 14 explains that this does not apply to town centre development.

Paragraph 85 refers to a ten year timeframe for town centres.

The requirement to review strategic policies every five years in the former paragraph 23 has been moved to paragraph 33.

The references to “strategic plan-making” in paragraphs 25 to 27 have been replaced with “strategic policy-making”.

“Local policies” are now referred to as “non-strategic policies” and where draft paragraph 30 explains that these “can be used”, the new paragraph 28 explains that they “should be used”.

The reference in paragraph 28 to non-strategic policies dealing with “conserving and enhancing the natural and historic environment” is new.

The draft paragraph 33, which explained what evidence local policies should be informed by, has been deleted. This is now incorporated into a new “Preparing and reviewing plans” section at paragraphs 31 to 33, which deals with all plan policies equally, whether they are strategic or non-strategic.

The “development contributions” section at paragraph 34 now includes “flood and water management” within the list of infrastructure contributions that should be set out in plans.

Paragraph 34 also refers to policies not undermining the “deliverability” of the plan, rather than development being made unviable by these policies.

The “examining plans” section, beginning at paragraph 35, has been reworked. The reference to sustainability appraisal is now included in the “Preparing and reviewing plans” section. The draft text which read “Significant adverse impacts on these objectives should be avoided and, wherever possible, alternative options which reduce or eliminate such impacts should be pursued. Where significant adverse impacts are unavoidable, suitable mitigation measures should be proposed (or, where this is not possible, compensatory measures should be considered)” has been deleted, presumably in the light of the People over Wind and Sweetman ECJ Judgement.

Paragraph 35 sets out the soundness tests for plans. At a) this includes that they are “positively prepared”. This includes providing a strategy “which, as a minimum, seeks to meet the area’s objectively assessed needs” rather than providing a strategy “which will, as a minimum, meet as much as possible of the area’s objectively assessed needs.”

4. Decision-making

Paragraph 46 now includes a reference to planning performance agreements being likely for applications that are particularly land or complex.

A new footnote 22 has been added referring to the transitional arrangements for emerging plans in determining planning applications.

In relation to the statutory planning obligations tests referred to at paragraph, a footnote has been added cross referring to Regulation 122(2) of “Planning conditions and obligations” at paragraph 56, the CIL Regs 2010.

Paragraph 57, referring to viability assessments, is toned down. Where it formerly said “no viability assessment should be required” “where proposals for development accord with all the relevant policies in an up-to-date development plan”, it now gives the developer the discretion to provide one and allows the decision maker to decide what to do with it.

5. Delivering a sufficient supply of homes

Paragraphs 60 and 61 are reworded a little, but not materially as far as I can tell.

Paragraph 63, which clarifies where affordable housing should not be sought, now refers to “residential developments that are not major developments” rather than “developments that are not on major sites”.

Paragraph 64 has been reworded slightly.

Paragraph 65 begins with a new first sentence: “Strategic policy-making authorities should establish a housing requirement figure for their whole area, which shows the extent to which their identified housing need (and any needs that cannot be met within neighbouring areas) can be met over the plan period.” The paragraph goes on to require these strategic policies to set a housing requirement for neighbourhood areas.

Under the heading “identifying land for new homes”, the small sites requirement has been clarified at paragraph 68. Whereas the draft required 20% of sites identified for housing in plans to be “small sites” of half a hectare or less, the revised NPPF now requires at least 10% of the housing requirement to be on “small and medium sized sites” larger than one hectare “unless it can be shown, through the preparation of relevant plan policies, that there are strong reasons why this 10% target cannot be achieved”.

Paragraph 72 now includes a series of criteria against which to assess proposals for larger scale development.

Paragraph 73 has been reworded slightly.

The draft paragraph 75, which explained the circumstances in which the paragraph 11d tilted balance applies, has been moved to footnote 7.

6. Building a strong, competitive economy

A new paragraph is added (para 82) recognising the importance of the specific locational requirements of different employment sectors.

Paragraph 84, which requires LPAs to be flexible in meeting rural business and community needs, now refers to these needs being met “adjacent to or beyond” existing settlements rather than “outside” them.

7. Ensuring the vitality of town centres

Paragraph 85 deals with planning policies relating to town centres. Criterion a) now refers to leisure as well as retail, and is reworded. The draft reference to “Primary and secondary shopping frontages” has been removed from criterion b) as well as the glossary. Criterion d), which refers to town centre site allocations, now refers to providing for development “likely to be” needed, and to meeting “anticipated” needs for town centre uses. Criterion e) has been reordered. Criterion g) which read “support diversification and changes of use where town centres are in decline, as part of a clear strategy for their future, while avoiding the unnecessary loss of facilities that are important for meeting the community’s day-to-day needs” has been deleted.

The reference in paragraph 89 to a Retail Impact Assessment only being required on sites larger than 2,500m2 unless a locally defined threshold is set has been clarified to explain that the 2,500m2 is gross floorspace.

Paragraph 90 has been reworded to refer to paragraph 89.

8. Promoting healthy and safe communities

Paragraph 91, which defines the healthy, inclusive and safe places that planning policies and decisions should aim to achieve, now refers to street layouts that allow for “easy pedestrian and cycle connections” rather than “multiple connections”.

Paragraph 93, which refers to estate regeneration, now requires the consideration of environment benefits as well as social and economic benefits.

Paragraph 95, which refers to public safety, includes a reference at criterion a) to policies being informed by up-to-date information. This referred only to local policies in the draft.

Paragraph 96, which refers to access to open space and sports, now states that this “is important” for health and well-being rather than saying that these “make an important contribution” towards these.

Paragraph 97 explains this circumstances where it might be appropriate to build on existing open space and sports buildings or land. Criterion c) now refers to the loss of “the current or former use” rather than just the former use.

9. Promoting sustainable transport

Paragraph 102 explains why transport issues should be considered early on. The text at criterion d) now refers to “avoiding and mitigating” any adverse environmental effects. The draft referred only to mitigation.

Criterion e) of paragraph 104 has been reworded. Criterion f) now refers to a “national network of general aviation airfields, and their need to adapt and change over time”. Previously, the reference was to a “national network general aviation facilities”.

Paragraph 106 refers to the limited circumstances in which maximum parking standards should be set. A reference is added to this being necessary to optimise development densities in city and town centres etc.

A new paragraph 107 has been added referring to the need to recognise the importance of overnight lorry parking.

Paragraph 109 states that “Development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network would be severe.” The draft referred to highway safety also being tested against the severity of residual cumulative impacts.

10. Supporting high quality communications

The reference in paragraph 113 to “providing capacity for future expansion” is new.

References in paragraphs 114 and 115 to “electronic communications” replaces that draft “telecommunications”.

Paragraph 115, which refers to the evidence needed to justify the development lists consultees at criterion a). These now include a reference to the relevant body responsible for military explosives storage areas.

Paragraph 116 now explains that applications must be determined on planning grounds “only”.

11. Making efficient use of land

Minor rewording to paragraph 117.

Paragraph 118, criterion a) now refers to “public access to the countryside”.

Paragraph 119 refers to LPAs etc taking a proactive role in bringing forward brownfield sites. The last sentence, which reads “This should include identifying opportunities to facilitate land assembly, supported where necessary by compulsory purchase powers, where this can help to bring more land forward for meeting development needs and/or secure better development outcomes” has been added.

Paragraph 122 now refers to “different types of housing” at criterion a), to the area’s prevailing setting as well as character at criterion d), and to “attractive and healthy places” at e).

Paragraph 123, which refers to low densities being avoided where these is a shortage of housing, suggests at c) that daylight and sunlight impacts should be considered flexibly. A caveat has been added in brackets which reads “as long as the resulting scheme would provide acceptable living standards”.

12. Achieving well-designed places

A new opening paragraph (124) significantly strengthens the opening sentence in the draft NPPF.

Paragraph 126 now refers to providing maximum clarity “about design expectations at an early stage”.

The last sentence of paragraph 126 is now more positive, saying that the level of detail “should allow a suitable degree of variety” rather than “should not inhibit a suitable degree of variety”.

The promotion of health and well-being is added to paragraph 127 criterion f).

Paragraph 129 has been reworded, particularly to refer to workshops to engage the local community and to the benefit of using these methods early.

Paragraph 130 now refers to style guides as well as design codes and the last sentence “Local planning authorities should also seek to ensure that the quality of approved development is not materially diminished between permission and completion, as a result of changes being made to the permitted scheme (for example through changes to approved details such as the materials used)” has been added.

13. Protecting Green Belt Land

Paragraph 136 raises the bar for altering the Green Belt through the development plan. It now refers to “where exceptional circumstances are fully evidence and justified” rather than “in exceptional circumstances” in the draft. Similarly, paragraph 137 requires the authority to “be able to demonstrate that it has examined fully all other reasonable options” rather than simply examining fully.

Paragraph 137 b) now cross refers to density policies in chapter 11.

A reference to “cities” as well as towns has been added to paragraph 142.

The last dot point under paragraph 145 g) has been reordered.

Paragraph 146, which sets out the other forms of development also not inappropriate in the Green Belt includes at e), material changes in the use of land. This previously referred to the openness of the Green Belt and the Green Belt purposes, but these are now deleted.

14. Meeting the challenge of climate change, flooding and coastal change.

Paragraph 150 b) refers to new development being planned in ways reduce greenhouse gas emissions. “Such as” is added before “through its location, orientation and design” to avoid the implication that the list is exhaustive.

Paragraph 154 b) refers to renewable and low carbon schemes. The draft NPPF was more restrictive of wind energy development, referring to the need to consider the local community’s views and specifying in a footnote that wind farms were only appropriate in areas identified as being suitable in the development plan. This has all been deleted.

Paragraphs 159 and 160 refer to the flood risk exception test. These paragraphs are more detailed than the draft, now explaining that the application of the exception test depends firstly on the vulnerability of the proposed use, and then explaining in more detail how development proposals might meet the exception test.

The situation in which the exception test might be reapplied is clarified at paragraph 162.

15. Conserving and enhancing the natural environment

Paragraph 170 explains how planning policies and decision should contribute to and enhance the natural environment. Criterion a) now refers to sites of biodiversity value. Criterion b) refers to ecosystem services. Criterion c) refers to where appropriate. Criterion e) now refers to water quality, with a specific reference to river basin management plans.

Paragraph 171 now refers to the need to distinguish between the hierarchy of international, national and local sites.

The need to “enhance” as well as “conserve” both landscape and scenic beauty in National Parks and wildlife and cultural heritage has been added to paragraph 172, and the clarification that National Parks, the Broads and AONBs “have the highest status of protection” has been added.

The reference at paragraph 172 to planning permission being refused in AONBs for major development proposals now includes a footnote defining major development.

Paragraph 174 a) now refers to the “safeguard” of habitats and refers to “wider ecological networks”. As above, it now refers to the “hierarchy of international, national and local” sites, it refers to areas identified by “national” as well as local partnerships and it refers to habitat “management” and “enhancement” as well as restoration or creation.

Paragraph 175 sets out the principles for determining that affect biodiversity. Criterion b) is clarified by referring to development “in the location proposed”, and criterion c) now includes ancient or veteran trees within the definition of “irreplaceable habitats”, both here and in the glossary.

Paragraph 176 now refers to “habitats sites” rather than “European sites”.

16. Conserving and enhancing the historic environment

Paragraph 187 gives much more detail about the historic environment record than in the draft.

Under the heading Considering potential impacts, paragraph 193 has been reworded and the last sentence, clarifying that great weight should be given to the conservation of heritage assets irrespective of whether the harm is substantial, total loss or less than substantial.

“Significance” has been added to paragraph 194.

The words “assets of the highest significance” have been added to the beginning of paragraph 194 b).

“Including, where appropriate, securing its optimum viable use” has been added to the list of public benefits against which to weigh less than substantial harm in paragraph 196.

17. Facilitating the sustainable use of minerals

The former criterion f) in paragraph 205, which referred to Minerals Safeguarding Areas, has been moved to its own paragraph, 206.

Under the heading “Oil, gas and coal exploration and extraction” in paragraph 209, “whilst ensuring appropriate monitoring and site restoration is provided for” has been added to b).

Paragraph 211 has been reformatted from a single paragraph, it seems largely to refer to the caveat that b) is only “if it is not environmentally acceptable” and to refer to environmental impacts in brackets.

Annex 1: Implementation

Paragraph 214, which sets out the transition arrangements, now includes a date of 24 January 2019, and explains that plans submitted before then will be based on the previous NPPF.

Paragraph 216 a) has been clarified.

Annex 2: Glossary

“Affordable housing for rent” clarified to include “social rent or affordable rent”.

“Starter homes” definition made more generic by removing reference to the incomes in the draft.

“Other affordable routes to home ownership” refers to low cost homes for sale needing to be “at a price equivalent to at least 20% below local market value”.

“Ancient or veteran tree” replaces the draft “aged or veteran tree”.

“Birds and Habitats directive” is deleted.

“Deliverable” – “sites that are not major development” replaces “small sites”.

“Designated rural areas” added.

“Development plan” now includes “Neighbourhood plans that have been approved at referendum are also part of the development plan, unless the local planning authority decides that the neighbourhood plan should not be made”.

“European site” replaced with “habitats site”.

“General aviation airfields” added.

“Historic environment” added.

“Historic environment record” reworded.

“International, national and locally designated sites of importance for biodiversity” added.

“Irreplaceable habitat” reworded, particularly to upgrade “ancient and veteran trees”.

“Local planning authority” reworded – “Mayor of London” replaces “Greater London Authority” and “development corporation” added.

“Local plan” – last sentence reworded.

“Major hazard sites, installations and pipelines” added.

“Minerals resources of local and national importance” added.

“Nature improvement areas” deleted.

“Natural Flood Management” added.

“Nature Recovery Network” added.

“Non-strategic policies” added.

“Primary and secondary frontages” deleted.

“Self-build and custom-build housing” deleted.

“Spatial development strategy” added.

“Strategic plan” deleted.

“Strategic policy-making authorities” replaces “strategic plan-making authorities”.