This section deals with how the ‘presumption in favour of sustainable development’ is operationalised.
On pages 4 and 6 of the draft the logic behind the presumption is set out
- Sustainable development requires growth to achieve it
- Therefore the planning system should encourage growth
- Planning must operate to encourage growth and not act as an impediment.
- This must start from a positive assumption about development, to create certainty and confidence for national and local investment.
- So ‘plan positively to promote development’ in both decision taking and plan making.
This is a logical chain, but notice what went missing along the way. The fact that sustainable development cannot be achieved without certain kinds of growth doesn’t imply that all kinds of growth promote sustainable development. If you don’t make the distinction then you are implying that all development is sustainable therefore all growth is, you can delete the sustainable from sustainable development. In fact the text does just that it replaces sustinable growth with growth, promoting sustainable development with promoting development. Hence the presumption in favour of sustainable development is in reality a presumption in favour of all development.
This should be easily rectified in the text, but the drafting creates worries that the omission was deliberate. That the real intention was to use sustainability as a viel to promote development per-se whatever its sustainability merits.
Ill look now at how the draft differs from PPS1 Delivering Sustainable Development and the accompanying document The Planning System General Principles
The word ‘presumption’ appears nowhere in the above. It did in earlier drafts of PPG1 post 2004 and pre 2007 but there were complaints that it didnt square with the presumption in favour of the development plan.
PPS 1 para 1 sets out a strong and positive role for the planning system in delivering sustainable development
Planning shapes the places where people live and work and the country we live in. Good planning ensures that we get the right development, in the right place and at the right time.
The practioners draft nowhere includes any concept of place shaping, the word ‘place’ does not appear once. It includes no simple covering statement that development should occur at the right time. It does not contain any the philosphy that planning should be selective about development. The philosophy is that it should be less selective. This is an enormous step backwards. Backwards to the early 80s planning system where planning was seen as an annoyance, a bureaucratic inconvenience that should get out of the way as the market alone would shape places. By not believing that planning has this positive role it removes any statement that good planning can be a good thing in its own right in delivering sustainable places.
Why not simply include these first two sentences from PPS1? Is the phrase ‘right development’ seen as allowing local authorities to be too prescriptive and negative? May I suggest the following instead:
Good Planning should shapes the places where people live and work and the landscapes we live in, ensuring that we get the development the country needs, in the right place and at the right time.
The practitioner draft states:
Applying the presumption in favour of sustainable development in this context will mean:
- local plans should be prepared on the basis that objectively assessed development needs are met;
- development proposals that accord with these plans should be promptly approved; and
- where planning policies are out of date or a plan is silent or unclear on a particular development, approval should be granted.
This presumption should apply unless to do so would cause significant harm to the objectives, principles and policies set out in this National Planning Policy Framework.
Compare this to ‘The Planning System General Principles’
Local planning authorities must determine planning applications in accordance with the statutory Development Plan, unless material considerations indicate otherwise. If the Development Plan contains material policies or proposals and there are no other material considerations, the application should be determined in accordance with the Development Plan. Where there are other material considerations, the Development Plan should be the starting point, and other material considerations should be taken into account in reaching a decision. One such consideration will be whether the plan policies are relevant and up todate.
The Barker review proposed a tweaking of this but it never fully found its way into PPS4.
The Budget Statement ‘The Plan for Growth’ says in para 2.12
Where local authorities do not have plans for development, or they are silent, out of date or indeterminate, this policy will mean that local authorities should start from the presumption that applications for development and job creation will be accepted
But this is not what the draft NPPS says, this says that they should be approved – not determined with a presumption, which implies a weighing and balancing of material considerations.
Lets start unpicking this by looking at the law. The NPPS should start with ‘Planning decisions should be determined in accordance with the statutory Development Plan, unless material considerations indicate otherwise’ (P&CA 2004 S38 6) – there should be a glossary reference to what the development plan is and the stringer principle from ‘General Principles’ – we shouldn’t have to keep dusty documents around to explain what the NPPS really means.
Why should the NPPS start out with the correct statement of the law? I can only presume that RSSs are an embarrassment and the government would rather pretend they didn’t exist. But following Cala II they cant be avoided, and will be around for at least 1 to 2 years. We cant wait for the NPPS until then. They are the elephant in the room and by law the NPPS must deal with them.
Indeed the government would be be hung by its own petard if it proposes that development in line with the development plan should be ‘promptly approved’ But but it doesn’t the reference to ‘local plan’ is not defined, but presumably it means any statutory development plan which is not an RSS.
The government is hung by its own petard. Where an RSS favours a development and there is an up to date adopted local plan then the draft says it should be ‘promptly approved’ – no allowance for other material considerations, no allowance for the ministerial statement on revocation of RSS. Where an RSS allows for a development but the local plan had not yet caught up by definition the local plan is out of date. In those circumstances ‘approval should be granted’ (no reference to quickly??) – again no weighing and balencing of material considerations – the decision maker would have to disregard the potential revocation of RSSs as a matter of national policy.
Now the NPPS could state that the SoS considers that RSSs are out of date, but this would open legal challenge as revocation and changes have not been subject to SEA/consultsation etc. The SoS would be particularly vulnerable in the SW and WM as he has deliberately sat on his hands.
There is no way that the NPPS can lawfully not consider the development plan into and all material considerations in the round.
The Plan It law blog dryly the blog notes that the phrase ‘material considerations’ doesnt appear even once in the draft.
Can a statement of national policy lead to the disregarding of all material considerations other than the NPPS and the development plan? Now lets quote ‘General Principles’ on the Gransden case.
The Courts have …held that the Government’s statements of planning policy are material considerations which must be taken into account, where relevant, in decisions on planning applications. These statements cannot make irrelevant any matter which is a material consideration in a particular case. But where such statements indicate the weight that should be given to relevant considerations, decision-makers must have proper regard to them. If they elect not to follow relevant statements of the Government’s planning policy, they must give clear and convincing reasons (E C Grandsen and Co Ltd v SSE and Gillingham BC 1985).
By law the decision maker must have regard to other material considerations and may refuse or approve applications in a manner contrary to the development plan or the NPPF if they can give reasons.
If the government wants a constitutional style zoning system where local plans are binding they need to change the 2004 act, until then discretion is permitted and the NPPF should reflect this. If they want a default yes irrespective of material considerations again they should change the law.
Representations from the public are material considerations – does the NPPF imply that they are not to be considered by these tests!
In terms of the remaining paragraphs of this section they are not comprehensive. – they dont deal with the situation of where a proposal is contrary to an up to date development plan. It does not deal either with the case where a proposal is contrary to the NPPF or the development plan but where unacceptable impacts could acceptably be mitigated through conditions or planning obligations.
In any event the courts have held that the age of a development plan is not a material consideration – what matters is whether it is still relevant. For example a green belt may have been designated 20 years ago but might still be relevant.
To be logical and lawful I would suggest the following redrafting.
Applying the presumption in favour of sustainable development in planning means :
A) Plan positively – Development plans should be prepared swiftly and kept up to date on the basis of evidence including that objectively assessed development needs are met in a sustainable manner ;
B) Planning decisions should be determined promptly in accordance with the statutory development plan, unless material considerations indicate otherwise (P&CA 2004 S38 6) – see Glossary. In accordance with these principles:
- development proposals that accord with the development plan should be approved;
- development proposals that do not accord with the development plan should be refused;
- where planning policies are not relevant or no longer relevant to a particular development, the development should be approved.
This clause should apply unless to do so would cause significant harm to the this National Planning Policy Framework, in particular its principals of sustainable development, and to material considerations taken as a whole. Developments Plans also should always be considered as a whole.
C) The decision maker should consider how planning conditions, obligations and the Community Infrastructure Levy can be used to improve development in accordance with the National Planning Policy Framework and the Development Plan, including how they can mitigate the impacts of a development, and whether this mitigation could remove any policy or material considerations to the extent that it could lead to a scheme being approved that would otherwise be refused;
D) In applying these principals the preferred outcome of the planning process, for all involved, should be the objectively assessed sustainable development needs of the country should be met through a plan-led system and this enables applicants to submit proposals where the decision is yes.