20 April 2018

Revised National Planning Policy Guidance and CIL Policy - A Brief Overview

In early March the Government published its consultation on the revised National Planning Policy Framework (“NPPF”).  At the same time it published new Planning Policy Guidance to be read alongside the NPPF and a consultation on the Community Infrastructure Levy (“CIL”).  The consultation period for all closes on 10 May.

Head of Planning, Amanda Beresford, briefly sets out some of the key proposed changes to the NPPF and CIL below followed by a short commentary on whether or not they should be welcomed.

Amanda was recently ranked as one of the top 20 highest rated planning solicitors nationally in the Planning Law Survey 2018. As part of her work as a member of the British Chambers of Commerce, National Planning Experts Panel, she will be meeting Government ministers to discuss proposed changes to the NPPF.

Summary of proposed changes

A number of the new proposals are designed to facilitate increased house building

  • A number of the new proposals are designed to facilitate increased house building. A new standard methodology for assessing housing need and an expectation that objectively assessed housing need will be accommodated by local planning authorities unless there are strong reasons not to, including unmet need from neighbouring authorities.
  • Local Planning Authorities are to consider imposing planning conditions to bring forward development within two years, with some exceptions, and also to consider why major sites have not been built when determining subsequent planning applications.
  • A new housing delivery test will impose sanctions on Local Planning Authorities for failing to meet housing targets.
  • Minimum density standards to be used in town and city centres and around transport hubs in areas where there is a shortage of land to meet identified housing need.
  • Clarification on the need for viability assessments with a proposal that all viability assessments should be made publically available and follow a standard method.
  •  For the first time, a reference to build to rent is included as part of the mix of housing to be provided.
  • Changes to the definition of affordable housing, with a shift towards housing for sale, to include Starter Homes and Discounted Market Sales Housing.   At least 10% of homes on major sites to be for affordable home ownership, with certain exemptions.
  • A new definition of deliverable, confirming that a site with outline permission or permission in principle or identified on a brownfield register or allocated in the development plan should only be considered deliverable where there is clear evidence that housing completions will begin within five years.

Green Belt and Ancient Woodlands

  • Proposals to reinforce the strong protection of the Green Belt including that before exceptional circumstances are used to change Green Belt boundaries, and where Green Belt is to be released, consideration should first be given to land which has previously been developed or which is well served by public transport.
  • A new proposal to permit the use of Brownfield Land in the Green Belt for affordable housing (providing there is no substantial harm to openness).
  • A new presumption against development that result in the loss or deterioration of ancient woodland, veteran trees or other irreplaceable habitats unless for “wholly exceptional reasons”.

Changes to plan making

  • Statements of common ground with other authorities to be prepared to evidence the discharge of the statutory duty to co-operate.
  • Changing the tests that a plan has to pass before it can be adopted.  This includes amending the test for a “sound” plan, to make it clear that it should set out “an appropriate strategy” rather than “the most appropriate strategy” (to avoid the need for disproportionate work to demonstrate that the strategy is optimal). The tests of effectiveness, positively prepared and soundness are also changed to emphasise the need for plans to meet objectively assessed need for housing and so that these tests more clearly encourage agreements and joint working.
  • A new requirement for plans to be reviewed every five years.
  •  The introduction of a new approach to viability whereby plans are to be clear about what contributions are expected in association with development.

Changes to the Presumption in favour of Sustainable Development

  • For example, instead of the presumption applying where policies are out of date, it will take effect where policies which are most important for determining the application are out of date.

Agent of Change Principle

  • The introduction of the so-called “Agent of Change” Principle by paragraph 180 which states “Planning Permissions and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs).  Existing businesses and facilities should not have unreasonable restrictions placed on them as the result of development permitted after they were established.  Where an existing business or community facility has effects that could be deemed a statutory nuisance in the light of new development (including change of use) in its vicinity, the applicant (or Agent for Change) should be required to secure suitable mitigation before the development has been completed”.

Changes to the Sequential Approach to Town Centre Uses

  • Out of centre sites should only be considered if suitable town centre or edge of centre sites are unavailable or not expected to become available within a reasonable period.

Community Infrastructure Levy (CIL)

Alongside the NPPF is a parallel consultation on the CIL.  Proposals in this include the following:

  • Reducing the complexity of the CIL regime.
  • Lifting the restriction on pooling Section 106 Contributions in certain circumstances.
  • Allowing charging schedules to be set based on the existing use of land.
  • Replacing the Regulation 123 List (which identifies what the CIL monies should be spent on) with a requirement to publish an Infrastructure Funding Statement.
  • Producing a Strategic Infrastructure Tariff (“SIT”) to operate as the mayoral CIL does in London. This will allow combined authorities, or joint committees with strategic planning powers, to levy a charge in addition to CIL to fund specific strategic infrastructure.

Should the changes be welcomed?

The NPPF is now six years old and therefore an overhaul is appropriate.  Many of the proposed changes have already been the subject of consultation via various white papers so there are few surprises.

There are some concerns about the additional burdens being placed on Local Planning Authorities and how they will cope given the cuts to their expenditure in recent years.  There is some criticism that the proposals in approach and tone herald a return to a top down approach. There is also concern that too much emphasis is being placed on rectifying housing problems by changes to the planning regime whilst other factors, outside of planning, may be the significant cause. 

The “Agent for Change” principle is already embedded in the draft London plan and is the subject of a private members bill.  The idea has been gaining traction over recent years and will be welcomed by many businesses.

Concerns have been expressed that the proposed standard methodology for calculating housing need will exacerbate problems in areas where demand is already high and create difficulties in areas that have high ambitions for growth but currently lack the market stimulus to meet it. The new deliverability test is welcomed and should ensure a greater proportion of identified sites actively coming forward for development. The specific references to Build to Rent are also likely to be welcomed in recognition of the important role it has to play in future housing growth.

The lack of any overarching national plan to link development to major infrastructure provisions is still felt by many to be a regrettable omission.
Attempts to simplify the CIL regime are largely welcomed however, there is clearly tension between this intention and the introduction of SIT.  The lifting of pooling restrictions should be helpful particularly where land values make the introduction of CIL unfeasible.  However, in the proposed new CIL regime, the devil will be in the detail.