Planning Law Speed Read – May 2018

James Brokenshire replaces Sajid Javid as housing minister

With the revised changes to the NPPF about to come in (see below), it is a challenging time for James Brokenshire to replace Sajid Javid as Secretary of State at the Ministry of Housing Communities and Local Government. The new secretary has said that he is ‘determined to get Britain building the homes our country needs so everyone can afford a place to call their own.’ It will be interesting to see how his appointment will shape the government’s response to the consultee representations on the new NPPF.

The revised NPPF – your last opportunity for responding

The consultation period for the revised NPPF closes this Thursday (10th May), there is therefore still time to submit any responses you may have, both on the formal NPPF consultation, and more informally on the proposed additions to the National Planning Practice Guidance (NPPG).

We have previously highlighted amendments to the definition of Affordable Housing and proposed changes to viability, and while we cannot cover all proposals within the context of this Speed Read, of note are the following:

The presumption in favour of development

• Re-worded to read “where there are no relevant development plan policies or the policies which are most important for determining the application are out of date”. The consultation states that this change is intended to reflect the way decision making is approached in practice, but is also no doubt intended to reduce litigation on whether the presumption should apply where peripheral policies are out of date.

An increased role for Neighbourhood Plans?

• Strategic Plans will set the housing figures for a Neighbourhood, thus potentially reducing the scope of a Neighbourhood Plan, however, local policies may be included in a Neighbourhood Plan thereby potentially increasing their significance.
• Once in force, the policies of an adopted Neighbourhood Plan take precedence over existing non-strategic plans in a local plan for that neighbourhood where they are in conflict.
• Neighbourhood Plans have the potential to set the design vision and expectations and can change the green-belt boundaries.

All of this will mean that where you are aware that a Neighbourhood Plan is being prepared it may be prudent to engage at an early stage with the plan makers, especially considering that the tests and scrutiny of Neighbourhood Plans is less strict and more flexible than for Local Plans.

Housing Need

• The introduction of a standardised methodology for the calculation of Objectively Assessed Need
• Local Housing Needs assessments should be based on the standard methodology unless:
  • there is a non-alignment of boundaries (for example with National parks); or
  • an LPA wants to propose more than the standardised OAN. The proposed NPPG suggests that increased numbers might be appropriate where growth strategies are in place, however, it remains to be seen whether authorities in the North East, where the standardised approach will generally result in a reduction of housing need, will have an appetite for pushing for an increase in numbers; or
  • exceptional circumstances exist. There is no definition or guidance as to what will constitute “exceptional circumstances” but any deviation will be tested thoroughly through the Planning Inspectorate at examination.

5 Year Supply and delivery

• LPAs will have to identify annually a 5 year supply of specific deliverable sites in an annual position statement. In preparing the annual position statement, LPAs will have to engage with stakeholders who have an impact on the delivery of sites and the proposed NPPG suggests that LPAs might wish to set up “assessment and delivery groups” to help assess the delivery of housing identifying issues and finding solutions to them.
• The introduction of a Housing Delivery Test assessed on figures over the previous 3 years and the results will be published annually in November. Where authorities do not deliver their identified housing requirement, then the following consequences will apply with immediate effect from the publication of the results:
  • Publication of an Action Plan if housing delivery falls below 95%
  • 20% buffer on the 5 year supply where delivery falls below 85%
  • Presumption in favour of development engaged where delivery falls below 75% (subject to transitional arrangements).
• LPAs should monitor progress on sites with extant permissions;
• LPAs should consider imposing conditions requiring that permissions are implemented within a shorter time period where this would expedite delivery without threatening viability. Although the Housing White Paper suggested a period of 2 years, the draft text makes no mention of a suggested time period. There is no minimum time period suggested.
• For major housing development sites, LPAs should also assess the reasons why an earlier grant of planning permission for a similar development on the same site did not start, although there is no guidance as to how this should influence the decision making.

Affordable Housing

• On major housing development sites, policies and decisions should expect “at least 10% of the homes to be available for affordable home ownership”

Some of these proposals will be welcomed by developers, however, there is much in the revised NPPF that may lead to years of litigation because of the new uncertainties it has introduced. Furthermore, some of the changes will be less welcome (for example those previously highlighted in respect of viability). There remains a small window for you to make your views known and if we can assist in this regard do please get in touch.

For further information on any of the issues covered in this update, please contact Kamran Hyder.