The NPPF one year on. A new era of planning? Planning, development and regeneration briefing

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1 Planning, development and regeneration briefing The NPPF one year on March 2013 A new era of planning? It is now a year since the National Planning Policy Framework (NPPF) was published with the aims of streamlining the planning system, encouraging community involvement in the planning process and promoting sustainable development and growth. In this paper, we examine whether or not the NPPF has delivered on its original objectives. We have conducted a high-level analysis of some key indicators, including: residential and retail planning appeal outcomes, the call-in decisions made by the Secretary of State, and a review of the status of local authority plan-making and neighbourhood plans. In addition to our own observations, we have gathered comments and insight from our clients and major industry bodies to inform our conclusions. Contents A residential perspective 2 The retail position 4 Local plans 6 Neighbourhood planning 8 Conclusions Stratton Street London W1J 8JR GVA I 1

2 A residential perspective The pre Framework world was marked by confusion over the role of Regional Plans and tension between growth and localism. Whilst the rhetoric of the draft NPPF and Planning for Growth was positive, most town halls had latched firmly onto the spirit of localism with growing resistance to new housing. In addition, the Secretary of State issued a series of high profile appeal dismissals for large scale housing schemes on green field land, citing prematurity and harm to the local plan making process as a key determinant. Post NPPF appeal trends However, since publication of the Framework, the overwhelming trend in decisions issued both by Inspectors and the Secretary of State has been strongly in favour of new housing development. Inspectors have clearly grasped the progrowth agenda set out in the Framework and applied it consistently to allow greenfield housing development where local planning authorities are unable to demonstrate a 5 year housing supply. Ageing local plan policies seeking to protect areas of countryside outside established development limits have consistently been found out of date and set aside, as have a range of restrictive local designations such as green wedges, areas of separation and special landscape areas. As the Tetbury case highlights, in certain circumstances even designations protected by the NPPF such as Areas of Natural Beauty are not immune to new housing being permitted at appeal, if it can be demonstrated that there is no realistic alternative to meeting housing need. A number of Inspectors have also reached similar conclusions in respect of Green Belt, but only in circumstances where release of the site has already been contemplated or would appear inevitable at some point in the foreseeable future. Meanwhile, the bar for the test of sustainability has not been set particularly high. Developments have been accepted as relatively or reasonably sustainable and it has not been necessary to demonstrate that any particular scheme is the most sustainable option. Sustainability has in most cases been judged by taking a common sense approach using traditional planning values. The availability of services and facilities and access by non-car modes have remained key determinants, although the contribution of schemes to economic and social sustainability have also carried very significant weight, in many cases outweighing identified harm to environmental sustainability. This approach has been generally endorsed by the Secretary of State who in a radical departure from his pre-nppf approach has shown a real desire to utilise the Framework to drive forward sustainable housing growth, consistently rejecting arguments about prematurity and issuing positive decisions in the vast majority of cases, including reversing his previous decisions at Winchester, Lytham and Sandbach (following the quashing of his original decisions in the courts). In the process he has sent out a number of clear warnings to local planning authorities about the need to progress their local plans and maintain a 5 year supply. Notably only three of the fifteen decisions so far reported by the Secretary of State have been dismissed. That said, the general pattern of allowing greenfield housing development, absent a 5 year supply, has not signalled an abandonment of good planning 10 Stratton Street London W1J 8JR GVA I 2

3 practice nor is it a charter to allow poor development. In general terms protection for Green Belt and other nationally recognised assets has remained strong and development which has generated significant highway safety concerns or has substantive and irresolvable impacts on ecology, heritage or landscape has still been rejected. This is illustrated by the three cases dismissed by the Secretary of State. At Bingley development was dismissed as a result of concerns over highway safety, and at Coalville due to the sheer scale of impact on the green wedge. He also refused what was acknowledged to represent sustainable development at Bridgwater in Somerset due to the council having a 5.1 year supply of housing, highlighting the continued fundamental importance of the supply calculation to the overall outcome. This decision perhaps also serves to demonstrate that, where local authorities do have control of their housing land supply, they will be allowed to retain control of decisions over the location of development, in accordance with the principles of localism. Achieving its aims The Framework appears to be achieving its aim of boosting the supply of housing through the approval of appropriate and sustainable development, whilst retaining sufficient safeguards to ensure that harmful and inappropriate development can still be resisted. Headline figures published by the HBF in March suggest that the number of residential units approved in England during 2012 was up 22% on the previous year. This national figure, however, masks quite marked regional variations. The figures are distorted somewhat by London, where permissions were up by 60%. The North of England saw increases in permissions of 43%, however, by contrast the Midlands saw the number of permissions fall by 11%. The lack of a consistent nationwide picture suggests that the full effects of NPPF are yet to be reflected in official statistics. The bar for the refusal of development has certainly been set higher and at officer level at least, this appears to have been recognised through more positive recommendations. However, there remains tension at member level between localism and growth and the number of appeals remains high. Signs are, however, indicating that local authority committees "The NPPF has provided welcome clarity and an impetus on housing delivery, and we have seen the impact this has had on increasingly positive appeal decisions. But local plans consistent with the Framework are still not coming forward as quickly as needed. Too many plans are being delayed, not least through lack of robust evidence or failure to adopt the duty to cooperate. This needs to be the focus over the next twelve months if the need for appeal is going to be reduced and the NPPF is to be properly implemented at the local level." Keith George, National Head of Planning, Taylor Wimpey are increasingly willing to support schemes out of necessity, in the hope that it will improve the supply position and assist them in resisting less popular development. Unpopular appeal decisions have also been responsible in some cases for increased interest in neighbourhood planning as communities respond to the challenge set by the Secretary of State to plan positively for the development of their areas. In all these respects the Framework is arguably succeeding. Of course there will remain an opposing view that the Framework has failed to safeguard the countryside or deliver the spirit of localism. In a report published earlier in March, the CPRE expressed its view that: The way the NPPF is being implemented is now threatening our uncluttered rural areas as inappropriate and haphazard development sprawls into the countryside. Looking ahead How long will the current appeal trends continue? Probably for some time yet. Many authorities remain some way from adoption of a core strategy and very few have the added protection of an allocations Development Plan Document. It would also appear that very few with adopted core strategies have taken advantage of the 12 month transitional period to make them NPPF compliant. The presence of a core strategy alone will not therefore save those authorities who are still unable to demonstrate supply. Only when an authority has an NPPF compliant local plan in place (with allocations) and has a demonstrable 5 year supply, should it breathe more easily. That in essence is captured by the Secretary of States recurring mantra with power comes responsibility. Get a plan, secure supply and regain control. 10 Stratton Street London W1J 8JR GVA I 3

4 The retail position It was widely predicted that the NPPF would not only simplify the guidance set out in PPS4, but would also take a more permissive approach to out-of-centre development. In practice, the final version largely re-stated the policy position set out in PPS4. So, one year on, has anything changed? The answer is yes, for a number of reasons: - First, we have seen new factors affecting the operation of the sequential approach, as one of the key gateway tests of the old guidance Second, the concerns about impact are now weighed against a clearly stated presumption in favour, particularly where the development plan is absent, silent or out of date Third, the rise of localism and the Government s reluctance to use its call-in powers has enabled councils to adopt widely different interpretations of the policy and planning balance based on their local circumstances Finally, the ongoing structural changes in the retail sector are accelerating and in many cases are outside the scope of any planning control in any case. Policy in practice the sequential approach In essence, the policy test set out in paragraph 24 remains largely unchanged, but two factors have affected the way in which it is being applied: The Dundee case; and The town centre pipeline. Coinciding with the publication of the NPPF, the Dundee Supreme Court Judgement handed down in March 2012 provides clarification of the meaning of the word suitable for the purposes of the sequential approach. The ruling favoured the City Council s interpretation as meaning suitable for the development proposed by the applicant. The early indications from appeal decisions are that some Inspectors are taking the Dundee case at face value, particularly in respect of clearly defined retail formats such as large food stores. However, in the Todmarden case, the Inspector took a different stance, favouring a more central site which could not accommodate the appellants proposal, reflecting the continued requirement for flexibility acknowledged in the Dundee case. The other factor which has undermined the effectiveness of the sequential test in some cases is the lack of viability of town centre schemes. There has been much debate about the pros and cons of securing short term investment, or safeguarding longer term town centre development opportunities. As with other aspects of the NPPF, the brevity of the policy itself leaves significant scope for interpretation. Despite these limitations, there are cases where the sequential approach has been upheld as a reason for refusal. The Dundee case does not alter the policy requirement to demonstrate flexibility, but it will no doubt be the subject of much debate and controversy. The Impact test The Impact test comprises two elements: effects on the vitality and viability of the centre, and effects on planned and committed investment. On the face of it, the challenges facing many high streets suggest there will be more cases of schemes failing the Impact test. However, analysis of appeal decisions suggests that impacts on committed and planned investment represents the stronger reason for refusal. If an outof-centre scheme would be likely to prejudice plans for the town centre, this still appears to carry weight with Inspectors and the Secretary of State. Call-ins and judicial review While the policy itself has not changed materially, Arguably a more significant change post-nppf is the Government s reluctance to call-in applications, and individual local authorities greater autonomy to interpret the policy how they see fit. This reluctance is evident from looking at the drop in the number of call-ins over the last five years, from 74 in the year 2008/2009, down to only a handful in 2012/2013. This has been borne out via a number of high profile cases, such as the Oakgate proposal at Monks Cross in York, Malton and Banbury, where the Secretary of State declined to call-in highly controversial proposals. However, recent call-ins suggest that this position may be changing. 10 Stratton Street London W1J 8JR GVA I 4

5 In the absence of call-ins, there appears to be more evidence of the use or threat of judicial review. This is particularly evident in the case of food store proposals, albeit that in most cases this option is only likely to delay proposals rather than defeat them. Overall implications It is difficult to separate out the direct effects of the NPPF from other ongoing structural changes in the retail sector such as the continued evolution of existing of out of centre retailing, the polarisation of retail activity to fewer larger centres, and the growth of multi-channel. The actual retail policies set out in Section 2 of the NPPF have not changed materially. However, the context provided by paragraph 14, i.e the presumption in favour of sustainable economic development has shifted the balance in some cases. While its significance may be over-played, the Dundee case is likely to make it easier for some retail schemes to pass the sequential test. In some cases the absence of viable and deliverable town centre alternatives also suggests it will be easier to secure consents for out of centre development. However, where developers fail to demonstrate flexibility, or proposals are likely to lead to significant impacts, these objections are still likely to be upheld on appeal. The most noticeable change in the retail planning position post-nppf is the far greater autonomy afforded to local planning authorities, and the Government s reluctance to exercise its call-in powers in all but the most extreme cases. Looking ahead, the continued asset management of existing out of centre developments, incremental extensions and mezzanines, and the development of dark stores and click and collect outlets suggests that a number of channels of further retail growth are largely outside of the control of planning authorities and the NPPF. The final text of the NPPF was broadly welcomed, and indeed crucially reinforced the importance of a town centres first approach to retail planning. However the reality is that, with so many local planning authorities yet to produce compliant plans, Government s public endorsement of this approach is not yet being applied locally. At a time of structural change in the retail sector it is more important than ever that councils plan positively for retail led investment in their towns and cities. Edward Cooke, Director of Policy and Public Affairs, BCSC 10 Stratton Street London W1J 8JR GVA I 5

6 Local plans Progress in development plan making One year in, and the latest statistics from the Planning Inspectorate indicate that only 48% of councils in England have an adopted plan. Approximately 30% of local authorities have yet to publish a plan in any form. Approximately 22% have published a plan but have yet to have it formally adopted. In response, some organisations are calling for an extension to the transitional period. Unsurprisingly, pro-development groups maintain that councils have had seven years to get their plans in place and should simply get on with it. The Framework establishes that existing plans may need to be revised to take its provisions into account. Councils are encouraged to do so as quickly as possible. However, to date, very few have managed to bring their plans into line with the Framework by way of review. Several significant issues have contributed towards delays in plan making and must be resolved if progress is to accelerate. Planning positively to meet housing needs On the face of it, the Framework is clear in its objectives for the calculation of housing land supply targets. However, interpretations vary. Authorities are obliged to carry out Strategic Housing Market Assessments in order to understand their housing needs. Some councils have chosen not to, presumably in an attempt to avoid delays, and have reverted to their old RSS housing targets instead. Some have tried to use the RSS evidence base but have also departed significantly from their old RSS figures. The failure of councils to identify an adequate supply of housing land has led to the downfall of several emerging plans. A High Court challenge led to the remittal, to the Planning Inspectorate for re-examination, of housing policies contained within the emerging North Somerset Core Strategy. The challenge succeeded due to an error in law in respect of the robustness of the council s proposed housing target. Other plans, prepared by councils across the regions, have failed on the grounds of inadequate housing land supply much earlier in the process than the North Somerset example. The difficulties associated with establishing housing targets for neighbouring councils in conurbations and metropolitan areas are a further area of concern. Councils are obliged to work collectively to agree targets across subregional areas. Some have been quick to recognise the implications of this and have produced sub-regional evidence base and aligned plans in partnership with neighbours. Others have not done so and have advanced their housing targets and progressed the preparation of their development plans in isolation. There is a significant risk that progress on some plans may have to be halted in order to allow progress on neighbouring plans to catch up and align. Delivery Emerging trends indicate that the Framework has forced the issue of delivery higher up the agenda. Local Plan Inspectors commonly set out their concerns with emerging plans before the Examination in Public (EiP) commences. "One year on from the publication of the NPPF, only about half of all councils have an up-to-date plan in place. We would continue to emphasise to all in senior local authority leadership that having a local plan is the key way to deliver positive outcomes for your community." Trudi Elliott CBE, Chief Executive of the RTPI 10 Stratton 10 Stratton Street Street London London W1J W1J 8JR 8JR GVA GVA I I 6

7 Requests for further information on delivery are common. In particular, Local Plan Inspectors have become increasingly focused on the infrastructure and delivery implications of emerging plans that rely heavily on sustainable urban extensions and other major projects which need significant capital investment up front. The Inspector appointed to examine the Wigan Core Strategy recommended that the examination process should be suspended in order for the council to prepare further evidence in respect of, amongst other matters, deliverability. There are various other examples nationwide. The duty to cooperate The duty to cooperate, and in particular the robust interpretation of it within the Framework, replaces regional planning guidance as the mechanism through which neighbouring councils must agree sub-regional housing targets. Whilst the Framework includes some examples of evidence of cooperation, there are few rules of engagement. There is no formal mechanism for collaborative working and no clear threshold or defined level of rigour which must be achieved in order to ensure the duty is discharged. Councils have taken different approaches to the duty. Some have established working or steering groups, involving their officers and elected members. Others have sought to engage their Local Enterprise Partnerships (LEPs) in the matter, albeit this was never part of the original remit for the establishment of LEPS. It is perhaps unsurprising that the failure of authorities to cooperate adequately with each other has halted progress on several emerging plans. One year is not a long time in development plan making terms, so relatively few clear trends have emerged. However, what is certain is that councils must cooperate before submitting their plans as Inspectors cannot propose modifications in respect of cooperation. In addition, in contrast to what the Framework states, Inspectors increasingly seem to interpret the obligation as a duty to agree, not simply cooperate. In its simplest form, cross boundary growth involves one authority delivering new development to meet the needs of another. As such, it is never likely to be an issue that councils agree on readily. However, there is at least some evidence that the Framework s approach to cooperation has the potential to deliver new homes where the old RSS system did not. It is perhaps unsurprising that the failure of authorities to cooperate adequately with each other has halted progress on several emerging plans Redditch Borough and Bromsgrove District Councils adjoin each other. The administrative boundary for Redditch Borough is drawn tightly around the urban area of the town. It has been acknowledged for many years that Redditch must expand into Bromsgrove District. The RSS acknowledged this and set a housing target for Bromsgrove which included an element of provision to meet Redditch s needs. However, the absence of a firm steer on when and how this growth was to be delivered resulted in inertia. The publication of the Framework appears to have stirred both authorities to take action to resolve cross boundary issues sooner rather than later. Both councils have consulted on proposals to release significant amounts of land from the Green Belt in Bromsgrove in order to meet Redditch s needs. We conclude that, following widely publicised failures in the duty to cooperate, an increasing number of councils recognise that if they do not work collaboratively and effectively they will not be able to get their plans adopted. Conclusions While its impact on the determination of planning applications has been immediate, the Framework has taken longer to make an impact on development plan making. Early signs indicate that several factors, which were either introduced or clarified by the Framework, have made it harder for councils to get their plans adopted than was previously the case. The publication of the Framework has slowed, not speeded up, the preparation and adoption of plans. This situation favours some, as it affords the opportunity to pursue sustainable development in the absence of a five year supply of housing land. However, development in some locations can only be achieved through the preparation of a local plan. The release of Green Belt land for housing is one such matter that relies on development plan making. Delays in the adoption of local plans are stalling important decisions on this and other strategically significant issues. 10 Stratton Street London W1J 8JR GVA I 7

8 Neighbourhood planning Shortly before the publication of the NPPF, the Localism Act introduced the neighbourhood planning regime, with the aim of providing communities with an opportunity to guide the location of development within their area, influence design and identify locally important assets or projects. Neighbourhood plans are also intended to provide certainty for developers that schemes will be locally supported and, where Neighbourhood Development and Community Right to Build Orders are put in place, speed up development by bypassing the planning application process. More recently, the Government has pledged where neighbourhood plans are in place, local communities can secure 25% of funding secured through the Community Infrastructure Levy (CIL) for locally identified projects. A little over a year on very few neighbourhood plans have been drawn up: whilst slightly less than 400 communities have applied to formally designate their neighbourhood planning area, only 20 draft plans have been published for consultation. The first referendum on a neighbourhood plan took place in early March in Eden, Cumbria with the plan successfully adopted. This hardly seems reflective of a speeded up planning system. The 400 communities which have signed up to the process demonstrate a desire to get involved and direct planning locally. However, the slow progress shows the disparity between this enthusiasm and the ability of communities to produce a plan. A cursory review of the 20 plans drafted to date highlights some of the issues. It is clear there is a gulf between those produced with the support of professional consultants and plans produced by community members both in terms of content and pace. This supports the widespread concern 400 communities applied to designate their neighbourhood planning area 20 draft plans published for consultation 1 neighbourhood plan adopted that local communities do not have the funds or skills necessary to produce neighbourhood plans. Even where there is interest and skill levels are sufficient to pursue neighbourhood planning, the process is not guaranteed plain sailing. This is either because the local authority has not progressed the local plan / core strategy with which the neighbourhood plan must conform or are unwilling to provide support to local communities drafting the plan. 10 Stratton Street London W1J 8JR GVA I 8

9 It is also clear from the 20 plans in draft that the motivation of communities varies significantly: some plans appear as a means to restrict development in their area (albeit within the constraints of remaining in general conformity with higher tier policy) whilst others actively The Malton case embrace new development. Notable examples of development friendly plans include the Dawlish and Thame neighbourhood plans which provide local allocations and a means for the community to secure investment in local facilities. The Malton case highlights the conflict inherent in the neighbourhood planning concept. In March 2011, an attempt by two local parish councils (Malton and Norton) to become one of the first areas to produce a draft plan for consultation was delayed as a result of conflict with the District Council over its content and because it preceded the adoption of the District Local Plan. The opposing policy positions related to retail growth in Malton and two potential schemes; both of which would be in the neighbourhood plan area one of those schemes was a District Council backed scheme on its own land. The town councils supported a different scheme closer to the town centre. This conflict eventually led to five of the parish councillors involved with the neighbourhood plan being called to a Code of Conduct Hearing. No evidence of misconduct was found, but the neighbourhood plan remains in draft form, awaiting the outcome of the local plan Examination in Public. While the Malton example does not fit with the Government s vision of devolving power back to local communities, it does demonstrate how neighbourhood plans can positively influence outcomes during the appeal process. At the recent Inquiry into the District Council's decision to refuse the retail scheme supported by the neighbourhood plan (in favour of the rival scheme on its own land) the Inspector allowed the appeal, referring to the neighbourhood plan and its support of the scheme as a material consideration. Clearly, more time is needed before we can more accurately assess the importance of Neighbourhood Planning, and if it will help or hinder the process of delivering development in the UK. However, it is clear that in some areas neighbourhood planning can be seen by developers and land owners as an opportunity to win community support for new development early and at limited cost, minimising risk later in the planning application process. 10 Stratton Street London W1J 8JR GVA I 9

10 Conclusions From our analysis, it is clear that the introduction of the NPPF has had a major impact on certain planning outcomes. We have drawn-out the following key points. The trend in residential appeal decisions post NPPF is strongly in favour of new housing development - particularly where local planning authorities are unable to demonstrate a 5 year supply or local plans are otherwise out of date. In such circumstances the bar for demonstrating that any harm would significantly and demonstrably outweigh the benefits has been set high. Whilst protection for Green Belt and other nationally recognised designations remains generally robust, development in such locations may still be allowed where there is a significant housing shortage and no obvious alternative means to resolve it. Overall, there are indications of a shift towards an increase in the number of residential permissions, although this is not uniform across the country. Looking ahead the number of residential permissions is likely to increase further as the appeal trends over the last twelve months begin to influence local decision makers to approve development without resort to appeal. This trend is likely to continue until local plans and 5 year supplies are in place. With regard to retail development, it would appear that, to date, local authorities are being given more autonomy to make their own decisions. Town centres sites continue to be protected where developers do not demonstrate sufficient flexibility or show that there would be no negative impact on town centre development sites. The publication of the Framework underlined the importance of having an up-to-date development plan and many councils responded with renewed effort and enthusiasm for plan making. However, increased speed has not always meant increased quality and the burdens placed on councils by the Framework have seen a number of plans fail or stall at EIP stage. The anticipated increase in the number of plans adopted since its publication has not therefore materialised to date. Despite initial enthusiasm, far less progress than originally envisaged has been made in neighbourhood planning for a number of reasons. However, there are signs that some The planning system, weighed down by voluminous amounts of legislation and regulation, was badly in need of renewal. The NPPF has opened the way for a clearer, less bureaucratic approach to planning but, with many aspects of the new system such as neighbourhood planning only now beginning to emerge, it will be some time before a fully rounded view can be taken about its impact. Getting a more balanced approach to planning was one of the preconditions for more sustainable economic growth but planning was never going to be the silver bullet that could by itself kick-start development. Planning reform must now be complemented by other measures needed to unblock the numerous stalled development schemes which can be found up and down the country. Liz Peace, Chief Executive, British Property Federation communities are beginning to move forwards and there remains an opportunity for businesses to get more involved. It is difficult to conclude whether or not the NPPF has succeeded in driving economic growth, but it does appear to be creating a pro-development platform upon which to move forward. With economic fundamentals still weak, it is fair to say that planning reform alone cannot drive economic recovery. Many other factors need to be taken into account when assessing how development will be delivered on the ground, including access to development finance and infrastructure funding. 10 Stratton Street London W1J 8JR GVA I 10

11 London West End 10 Stratton Street London W1J 8JR March 2013 London City 80 Cheapside London EC2V 6EE Belfast Rose Building Third Floor 16 Howard Street Belfast BT1 6PA Birmingham 3 Brindleyplace Birmingham B1 2JB Bristol St Catherine s Court Berkeley Place Bristol BS8 1BQ Cardiff One Kingsway Cardiff CF10 3AN Edinburgh Quayside House 127 Fountainbridge Edinburgh EH3 9QG Glasgow 206 St Vincent Street Glasgow G2 5SG Leeds City Point First Floor 29 King Street Leeds LS1 2HL Liverpool Exchange Station Tithebarn Street Liverpool L2 2QP Manchester 81 Fountain Street Manchester M2 2EE Newcastle Central Square Forth Street Newcastle NE1 3PJ Published by GVA 10 Stratton Street, London W1J 8JR 2013 Copyright GVA GVA is the trading name of GVA Grimley Limited and is a principal shareholder of GVA Worldwide, an independent partnership of property advisers operating globally gvaworldwide.com For more information: Chris Goddard Head of Planning, Development and Regeneration gva.co.uk This report has been prepared by GVA for general information purposes only. Whilst GVA endeavour to ensure that the information in this report is correct it does not warrant completeness or accuracy. You should not rely on it without seeking professional advice. GVA assumes no responsibility for errors or omissions in this publication or other documents which are referenced by or linked to this report. To the maximum extent permitted by law and without limitation GVA exclude all representations, warranties and conditions relating to this report and the use of this report. All intellectual property rights are reserved and prior written permission is required from GVA to reproduce material contained in this report. GVA is the trading name of GVA Grimley Limited GVA Stratton Street London W1J 8JR GVA I 11

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