NPPF 2018 - Housing summary

NPPF 2018 - Housing summary

Published:

Author: Tim Johnson

Applies to: England

The NPPF has been with us, without amendment for around 6 years which for national planning policy is close to a record. We have had Written Ministerial Statement and the NPPG to supplement it but the document itself has not changed during that period.

Now, on 5 March 2018, after much anticipation and false starts the Ministry of Housing, Communities and Local Government have issued the consultation draft for a revised Framework. The consultation period ends at 23:45 on 10 May 2018 with most commentators expecting the final version of the Framework to pretty much follow this draft.

The Prime Minister, introducing the draft focused on the need for housing delivery to increase significantly, the draft Framework echoes this. Below is a briefing note on the principle changes to the Framework polices affecting the delivery of housing. This is not intended to be an all encompassing treatise on the consultation draft but merely to pick out some of the more noteworthy issues.

Where "NPPF" is referred to that is to the existing NPPF, where "NPPFC" is referred to that is to the NPPF consultation draft.

1. Written Ministerial Statements: Various cases have raised questions over the weight to be given to ministerial statements, for instance the affordable housing ministerial statement and those relating to neighbourhood plans and the titled balance (see for instance R. (on the application of West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 and Richborough Estates Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 Admin). The NPPFC now expressly states at paragraph 6 that "other statements of government policy may be material when preparing plans or deciding applications, such as relevant Written Ministerial Statements and endorsed recommendations of the National Infrastructure Commission". Not a major point but it shows early on in the NPPFC the desire the government has to clear up any issues that have arisen through the courts, that is reflected with greater importance later.

2. What is Sustainable Development: Paragraph 8 NPPFC has reworded the meaning of sustainable development for the purpose of the guidance. The NPPFC stated that the social objective is achieved by (amongst other matters) "providing the supply of housing required to meet the needs of the present and future generations.". The NPPFC has tweaked this to "by ensuring that a sufficient number and range of homes can be provided to meet the needs of present and future generations". A small change but with the changes to the requirement to ensure that housing need is met this may become more important.

3. The Titled Balance: The presumption in favour of sustainable development, the titled balance, (paragraph 11 of the NPPFC) loses the problematic "golden thread running through both plan-making and decision-taking" to a simple application of the presumption in decision-making: "decisions should apply a presumption in favour of sustainable development". This reflects the recent case law including the Supreme Court decision (Secretary of State for Communities and Local Government v Hopkins Homes Ltd, Richborough Estates Partnership LLP v Cheshire East BC [2017] UKSC 37) and is unlikely, on its own to change decision making but there is more to come.

4. There are, as expected, further changes to the presumption:

4.1 The paragraph 49 NPPF enjoin that relevant policies for the supply of housing should not be considered up to date if a 5 year supply of deliverable sites cannot be demonstrated has gone.

4.2 Paragraph 75 NPPFC goes further and in addition to applying the tilted balance1 where the LPA "cannot demonstrate a five-year supply of deliverable housing sites" it adds "or where the Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years".

4.3 This puts the need to deliver and housing and not just identify sites firmly on the centre stage. It will no longer be enough for a local planning authority to state that they can show 5 years' worth of sites that have the potential to be delivered, they must also show that they are delivering housing to meet their requirements or be subject to the titled balance;

4.4 Of note is that those deliverable sites must now include 20% that are of half and hectare of less (paragraph 69(a) NPPFC).

4.5 There are a few further points to take note of here:

4.5.1 We still have the distinction (see St Modwen Developments Ltd [2017] EWCA Civ 1643) between deliverability and delivery set out in paragraph 47 and 49 of the NPPF. Paragraph 68 NPPF brings a condensed footnote 11 of the NPPF into the main text but still requires an LPA to demonstrate a five year supply of specific, deliverable sites. For a site to be regarded as deliverable it does not need to be "certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent possible, within five years" (Linblom LJ in St Modwen at 39);

4.5.2 The addition of a requirement for an assessment of housing delivery at paragraph 75 of the NPPFC dilutes that substantially and reflects the arguments that are being put forward now that the crux is delivery of sites rather than the ability to identify potential sites; 4.5.3 There is now also a specific policy requiring strategic plans to include a "trajectory illustrating the expected rate of housing delivery over the plan period" (paragraph 74 NPPFC) which bears upon the buffer to be applied in assessing housing need and thus the numbers of deliverable sites that need to be identified, as follows:

(a) A 5% buffer is applied automatically (no change);
(b) A new 10% buffer is applied if a "local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan":
(i) Paragraph 76 NPPFC states that an annual position statement is one produced "through engagement with developers and others who have an impact on delivery, and been considered by the Secretary of State and incorporates all the recommendations of the Secretary of State, where the position on specific sites could not be agreed during the engagement process." Whilst there is not any detail of what consideration by the Secretary of State would entail the ability to produce such a statement in good time does put some doubt on the realistic use of such statements;
(ii) Recently adopted has been given a narrow meaning (footnote 28 of the NPPFC) of "adopted between 1 May and 31 October will be considered 'recently adopted' until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October that year". That is 18 months. Whether this goes to interpretation of whether a local plan is out of date for the purposes of NPPFC paragraph 11(d) or the weight to be given to a local plan and that is adopted outside of these periods will no doubt be the subject of argument if the revised NPPFC keeps this;
(c) The 20% buffer remains but is brought into play "where there has been significant under delivery of housing over the previous three years" rather than the NPPF "record of persistent under delivery of housing". This provides a useful benchmark to assessing when the 20% buffer will apply, reducing the amount of time spent arguing what the subjective "persistent under delivery" means to a more objective view of the last three years. We do still a potentially subjective "significant" however paragraph 75 NPPFC states that the titled balance is brought into play where the new Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years. Substantially is defined in footnote 30 to the NPPFC as delivery below 75% of the housing requirement. It would be useful to align "significant" in respect of the 20% buffer and "substantial" in respect of the titled balance but this is helpful;

4.5.4 There is a noticeable and deliberate move away from the paragraph 49 NPPF "relevant policies for the supply of housing" to the paragraph 11(d) NPPFC "policies which are most important for determining the application". This effectively negates part of the Supreme Court's decision in Suffolk Coastal and brings into play arguments as to what policies are determinative for the application (surely any that are considered material) and whether they are out of date. The titled balance will be applied and any of these policies will be out of date rather than those that just relate to housing supply. This could have far reaching implications in assessing planning applications, particularly at appeal;

4.5.5 The presumption in favour of the development plan is repeated at paragraph 12 NPPFC but importantly the paragraph 14 NPPF approve "development proposals that accord with the development plan without delay" has been changed to state that the development plan must be up to date for this to apply. In all probability this merely strengthens the paragraph 11(d) titled balance application in respect of out of date development plan polices;

4.5.6 A problem with the NPPF titled balance application was whether it was disapplied where "specific policies in the Framework indicate development should be restricted". The list of examples of such specific polices found at footnote 9 to the NPPF has gone. This exception to the titled balance now finds itself in pole position with a list of polices protecting assets of particular importance that can disapply the titled balance when they provide "a clear reason for refusing the development proposed" found at footnote 7 of the NPPFC. This list is now exclusive rather than "for example". The need for a decision maker to assess whether application of these polices (if applicable) is enough to disapply the presumption remains but is strengthened to a requirement that there must be a clear reason for this to be the case;

4.5.7 The existing requirement to assess whether any adverse impacts of applying the titled balance "would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole" remains unchanged in paragraph 11(d)(ii) of the NPPFC;

4.6 The Written Ministerial Statement that was the subject of the Richborough Estates case earlier this year, that only a 3 year supply of deliverable housing sites needs to be identified if there is a neighbourhood plan that identifies sites for housing now finds itself in the Framework with some important and welcome changes and clarification:

4.6.1 The neighbourhood plan must have been passed at referendum two years or less before the decision on a planning application is made;

4.6.2 The neighbourhood plan must contain policies and allocations to meet its identified housing requirement. Paragraph 66 of the NPPFC adds a new requirement for local planning authorities to set out in Strategic Plans a housing requirement figure for designated neighbourhood areas and at paragraph 67 of the NPPFC that where that is not possible an indicative figure should be provided;

4.6.3 The local planning authority must be able to identify at least a three year housing supply against its five year target and (this is new) its "housing delivery was at least 45% of that required [assessed against the Housing Delivery Test from November 2018] over the previous three years".

5. Green Belt: There is not any changes to the requirement to show very special circumstances before granting permission for inappropriate development in the green belt but there are some addictions to development that is not to be considered as inappropriate, as follows:

5.1 Rather than just the provision of facilities for outdoor sport, recreation and cemeteries this has been extended to where there is an existing use and a change of use of that land to these uses as long as that does not materially affect the openness of the green belt. It also now includes burial grounds and allotments;

5.2 The addition to the exception for limited infilling to where that would use previously development land where that contributes to meeting an identified affordable housing need;

5.3 Development brought forward under a Neighbourhood Development Order.

[1] Paragraph 11(d) NPPFC states "where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date" then the titled balance applies subject to the two exceptions at paragraph 11(d)(i) and (ii).

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.