Government Response to the DCLG Select Committee Report on the #NPPF
Thanks to Josh for the link, tucked away on the National Archives, with seemingly no government or parliament web site links to it yet.
Here are the key recommendations only partially or not accepted.
CLG Select Committee recommendation 1: We welcome the fact that the Minister is receptive to specific suggestions for improvements to the NPPF. We consider that there needs to be a clear narrative at the start of the NPPF, stating: where planning policy has stayed the same, but has been simplified or summarised; where new policy has been introduced;
where current policy has been changed or removed; and the relationship of the NPPF to other national policy documents, including National Policy Statements and the Natural Environment White Paper. There is no harm in increasing the length of the document moderately, if that results in a more comprehensive and less ambiguous document.
The Government accepts this recommendation in part. We have amended the opening sections of the Framework to set out clearly the Framework’s relationship with other statements of national policy including National Policy Statements and the Natural Environment White Paper. We have also made changes to provide certainty about the relationship between the Framework and the legal framework for planning set out in the planning acts.
As recommended, the Framework sets out in Annex 3 a clear and transparent list of the documents that it replaces. The Government has where possible acted on suggestions for improving the clarity of the Framework, but does not consider that it would be helpful or in keeping with the nature of the Framework to articulate the new policies by reference to existing policies in Planning Policy Statements, Planning Policy Guidance notes or other existing policy documents that have been cancelled on publication of the Framework. The Framework is written to be simple and accessible to non-specialists, and to reference each existing policy in every Planning Policy Statement, Planning Policy Guidance note or other existing document would make the Framework much less accessible and clear.
CLG Select Committee recommendation 2: Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’
charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a
tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’;
‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable’. (Paragraph 29)
The Government welcomes the Committee’s support for the objective of achieving a simpler and shorter national policy framework, and accepts the recommendation that the terms used should be as tightly defined as possible. The Government welcomes, and has carefully considered, the detailed comments and drafting suggestions submitted by the Committee and others as part of the consultation, and has amended the Framework to define terms wherever relevant and to be consistent in the description of the weight the Government attaches to policies.
Note they did not respond to the concerns about the brevity of the document.
In a key paraa it states
The Government will now embark on a new exercise to consider what underpinning guidance continues to be needed, involving practitioners and other interested parties. The outcome of this process will be an appropriate and easy to use set of guidance, focussing on issues that require national expression, to support implementation of the Framework. It will not always be the case that the guidance should come from Government – in some cases professional bodies may be the most appropriate bodies to publish guidance. The Government has been clear that until such time as the guidance review is complete, the existing guidance where relevant can still be used.
The Government agrees that it should be clear that Local Plans can reflect issues that are not explicitly referred to in the Framework. Consistent with this Government’s commitment to putting locally led planning at the heart of the planning system through Local Plans, the Framework makes clear that “plans and decisions need to take local circumstances into account, so that they respond to the different opportunities for achieving sustainable development in different areas”.
And in a very curious acceptance of a erecommendation the government says it is rejecting they say
The Government does not accept the Select Committee’s wider concern that the definition may lead to “affordable homes” that are not actually affordable to local people. We have amended the definition to be clear that eligibility for affordable homes should be determined according to local incomes. This was ambiguous in Planning Policy Statement 3.
The government accepted in part the recommendation that the NPPF draft was largely ‘placeless’
We have amended the Framework to also be clear that planning should “take account of the different roles and character of different areas”
Reflecting consultation responses we have amended the Framework policies on evidence, where necessary, to clarify expectations, for example to clarify that local planning authorities should understand the need for educational infrastructure and that evidence relating to the environment should include the implementation mechanisms for the Water Framework Directive.
On the critical issue of the definition of sustainable development
We have amended the Framework to make reference to both the longstanding Brundtland report and to the five guiding principles set out in the 2005 UK Sustainable
Development Strategy. The policies in the Framework reflect the Government’s views of how the principles of sustainability should be applied in preparing local and
neighbourhood plans and in making planning decisions. We have amended the Framework to be clear that the economic, social and environmental roles of the planning system should not be pursued in isolation, because they are mutually dependent. We have also been clear that local planning authorities should seek opportunities to achieve each of the economic, social and environmental dimensions of sustainable development, and NET GAINS across all three.
Note the language it is a reference not a definition. Subtle difference.
Also note the three net gains approach – the three circles approach promoted by Greg Clark at his select committee appearance and vigorously promoted on this blog only appears in the plan making section of the NPPF in para 152. It looks curiously out of place. It looks moved by the Treasury from the front definitional/general principles section. So can this approach to mutual gains and compensation and mitigation be applied on casework, no reason why not. The legal advice (to the NT) is that every para of the NPPF is equally relevant to casework unless the NPPF says it is not, which it does not here. Treasury clever clever fail here.
The Government accepts the recommendation that the ‘default answer is yes’ should be removed from the Framework. This language has given rise to unwarranted concerns that development should be allowed to proceed at all costs, which was never the intention of government policy. However, the Government remains committed to ensuring that the planning system does everything it can to support economic growth.
And on the issues of ‘significantly and demonstrably’ and ‘burden of proof’
CLG Select Committee recommendation 15: The phrase ‘significantly and demonstrably’ should be removed throughout the document; we prefer the simpler test of significance. Indeed, the alternative wording from the Practitioners Advisory Group’s version – “this presumption should apply unless to do so would cause significant harm to the objective, principles and policies set out in this National Planning Policy Framework” – encapsulates, in our minds, a clearer, more balanced approach to the presumption in favour of sustainable development. Such new wording should also place the burden of proof of the presumption not causing significant harm onto the developer or applicant, not on the planning authority. (Paragraph 86)
The Government does not accept this recommendation. The Committee indicated that it favoured a test of ‘significance’ rather than ‘significantly and demonstrably’. We considered carefully whether the word ‘demonstrably’ was in some ways unclear or ambiguous. We have concluded that, to require that something is demonstrable, is simply to require it to be based on more than assertion – in other words, to be based on evidence, which is a theme that runs through the whole of the Framework.
The Government does not accept that the burden of proof that development would not have adverse impacts which significantly and demonstrably outweigh the benefits should fall onto the applicant. It will be a matter for the decision-taker to assess whether development should or should not be granted planning permission based on the right information. The Government encourages applicants for planning permission to discuss what information is needed with the local planning authority and expert bodies as early as possible.
The last para is ctitical because it shows that there is no ‘burden of proof’ rather there is a threshold of information and the decision maker must decide on the evidence whether the decision test in para. 14 is met. This is exactly the approach we recommended.
CLG Select Committee recommendation 17: We consider that the transport section of the NPPF is a good illustration of lack of balance in the document as currently drafted; by the use of such phrases as ‘where reasonable’, and ‘where practical’, it gives the impression that the ‘sustainable’ part of ‘sustainable development’ can be jettisoned almost at will. Local authorities should be able to expect that they can reject or enforce changes to development on transport or environmental grounds, not just where the impact would be ‘severe’, but where it would run counter to local priorities and wishes, or where an individual development might contribute to a ‘severe’ cumulative impact caused by several developments. This example serves to illustrate the difficulties local authorities may have in making a determination on particular applications. (Paragraph 95)
The Government accepts this recommendation in part. The Government believes there is a need to strike the right balance between allowing development proposals to go ahead and enabling communities to ensure necessary transport improvements can be secured. In particular, it accepts that consideration of the cumulative impact of development on the transport network needs to be more clearly expressed. We have, therefore, amended the wording to be explicit that in addition to considering the impact of a specific development, account should be taken of the cumulative impact of development on the transport network.
On absent, silent, out-of-date or indeterminate local plans
CLG Select Committee recommendation 19: There is a tension between the advice in the NPPF that Local Plans should be succinct, and the need for local authorities in the absence of national guidance, to produce comprehensive plans tailored to local circumstances. We share the Government’s desire for succinct Local Plans, but accept that somewhat longer Local Plans are inevitable because they fill significant gaps left by the loss of regional plans and by the substantial reduction in detail of national policy (paragraph 104)
The Government does not accept this recommendation. We do not accept that the revocation of regional plans or the simplification of national policy will lead to significant gaps. Where there are particular local circumstances that mean that councils wish to reflect policies in regional plans in their Local Plans, they can do so by undertaking a quick review focussing on those policies. Councils can also continue to draw on evidence that informed the preparation of regional strategies to support Local Plan policies, supplemented as needed by up-to-date, robust local evidence.
In another important phrase
We have clarified the Framework to make clear that the ambition of neighbourhoods should be aligned with the strategic needs and priorities of the wider local area. The Framework sets out what the strategic priorities of Local Plans must include.
We have also amended the Framework to be clear that once a Neighbourhood Plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict.
Now on the critical issue of the Duty to Cooperate and Larger than Local Planning
The duty to cooperate and evidence bases for Local Plans CLG Select Committee recommendation 21: Consistency between local authorities in assembling evidence bases for Local Plans is crucial to the effective functioning of the duty to co-operate. While we understand that the Government believes the Duty to Co-operate contained in the Localism Act 2011 coupled with other developments such as the creation of Local Enterprise Partnerships will ensure that spatial planning is adequately addressed, we share some of these concerns. Without consistency, it will not be clear what benchmark the Planning Inspectorate will use for judging the ‘soundness’ of plans, especially when neighbouring local authorities have been unable to reach agreement about the need for or location of new housing. Therefore we recommend that the guidance being produced by practitioners on assembling an evidence base for housing be officially adopted by the Government. We also recommend that the Government commission groups of practitioners to produce similar, authoritative guidance on assessing needs for other types of infrastructure. (Paragraph 117)
The Government accepts the thrust of this recommendation. The guidance published by the Department on carrying out Strategic Housing Market Assessment guidance will remain in place once the Framework is published. The guidance sets out a methodology which enables local authorities to work in partnership across housing market areas to develop a robust shared evidence base on housing issues.
We are committed to reviewing the guidance on strategic housing market assessments as part of our wider review of guidance. The consultation on the draft Framework asked for views on what any separate guidance should cover, and who is best placed to provide it. The Department is considering the responses to these questions in deciding a way forward.
Note the government did not answer, and has not answer and cannot ever answer the issue of what happens when there is stalemate under the duty to cooperate. Some additional principal or mechanism is necessary.
Note however the government is only partially accepts recommendation on brownfield first.
CLG Select Committee recommendation 29: We welcome the Government’s openness to reinstating the familiar and well understood term ‘brownfield’ in the NPPF, whilst recognising that more sophistication is needed in its definition to avoid unintended consequences. There is a danger, nevertheless, that the removal of the brownfield target and the ‘brownfield first’ policy—in conjunction with the introduction of the presumption in favour of sustainable development and changes to requirements for allocating land for housing—will result over time in less importance being attached to the use of previously-developed land first where possible. This principle should be strongly stated in the NPPF, and reiterated by requiring local authorities to set their own targets for the use of brownfield land. This would allow for adaptation to particular circumstances and would in addition be a useful mechanism for local accountability. (Paragraph 143)
The Government accepts this recommendation in part. We have amended the Framework to clarify that planning policies and decisions should encourage the effective use of land by re-using land that has previously been developed (brownfield land), provided that it is not of high environmental value. We do not believe a national target is appropriate, as it cannot capture the range of local possibilities for the use of brownfield land. However, it is open to local planning authorities to consider setting a locally appropriate target for the re-use of brownfield land.
And a critical clarification follows
Where local planning authorities prioritise the re-use of brownfield land they will be able to reflect this in their five year supply of sites for new housing.
The government rightly says:
The Government does not accept that it would be justifiable, or indeed lawful, to seek to preclude all out of town retail development. Planning law establishes that development proposals should be judged on their individual merits.
On the suggestion of a second consultation.
The Government does not accept this recommendation. We have undertaken a full and detailed consultation on its proposals for the new national planning policy. The revisions the Government has made to the 19draft Framework reflect the comments and suggestions made during the consultation which were comprehensive and detailed.
The Government has engaged closely with Parliament in the preparation of the Framework. In addition to the two Select Committee inquiries, there were focussed debates held in both Houses and many comments were made in the debates during the proceedings on the Localism Bill. The Government strongly believes that Parliament and its Select Committees, having contributed to the development of the Framework, should supervise its implementation with debates in both Houses during the new session.
This is new debates on implmentation after the State opening of Parliament.