Plan-it Law on the Leaked NPPF draft – key changes

From Plan-it law this lunchtime

A marked up “official” (but leaked!) draft NPPF found its way into my inbox this morning – so naturally I felt it was my duty to look through it. I compared it with the version produced in May by the practitioners advisory group.

The base document for the official version is clearly that which was offered by the advisory group. Some provisions are still awaiting comments (in particular the housing provisions) but by and large, there are not many amendments to the advisory group version. However the following struck me;

1 Not only is the presumption in favour of development (including “the default answer…is “yes””) retained, but it is beefed up.

2 However, where the advisory group version had a saving for development which would cause significant harm to the objectives of the NPPF itself (in which case the presumption may be defeated), the official version speaks in terms of “unless the adverse impacts…would significantly and demonstrably outweigh the benefits when assessed against…. (NPPF)” – which seems to allow more scope for the presumption to be overcome.

3 Neighbourhood planning appears prominently – with clarity around neighbourhood plans being able to promote more development than in the Local Plan, and a push for local and neighbourhood development orders. Policies in Neighbourhood Plans will take precedence over existing policies in the Local Plan.

4 The importance of viability and genuine deliverability of sites remains in the official version, which also makes clear that market signals like house prices and commercial rents need to be taken into account. In fact there seemed to me to be a clear sub plot to bring forward much greater levels of development in areas of high prices.

5 The advisory group version played down the role of allocations in Local Plans, leaving those to “sites central to the plan”. The official version reinstates the broader use of allocations however.

6 There is a clear attempt to bolster the duty to cooperate. For example, there is now an outcome focus to the consultation and inspectors examining a Local Plan must assess whether it has been prepared in accordance with the duty. The local enterprise partnership will have a role in collaboration on strategic planning and the delivery of economic growth.

7 The official version claims legitimacy for the taking into account of financial considerations in planning decisions. No doubt this will depend on the Localism Bill.

8 Planning permission should not normally carry a condition requiring a 106 to be entered into. More detail around the rationale for this would have been useful.

9 In the advisory group version there was, in the transport section, an acknowledgement that the private car will continue to form an important mode of transport. That has now gone – in favour of wording around taking account of the circumstances in different communities.

10 The waste section has been deleted – we are to look to the emerging National Waste Management Plan for guidance here.

11 In the Historic Environment section, it seemed to me that non designated heritage assets (eg locally listed buildings) will have reduced protection.

12 There is a specific and positive reference to the development of new schools.

This seems a fair assessment of the key changes.

I would only add:

-The addition of a section on Defence and National Security Considerations.

-The return of the notorious ‘double presumption’ in favour of housing from the pre-PPG3 days of the 1980s.  Ill write some more specifically on this soon.

-The ‘one plan’ local plan principle is dropped – the local plan=LDF.

National Planning Policy Framework Forensics #54 Noise

This compares the practitioners draft section on noise (page 50) with PPG24 (2006).

Overall this is one PPG which has stood up rather well over time, there has been no rush to amend it.  The main controversies have been over the science on ambient noise concerning aircraft and wind turbines where various departments have been very reluctanct  to update various guidance, again shiting the issue to be considered 100 times at appeals instead to noones benefit.

The key matters from the PPG are the definitions of Noise Exposure Categories for Dwellings in Annex 1 and the definitions of noise sensitive development from annex 1.

The PPS states that technical guidance will replace these?  But as this can be reduced to a page and a half why not just include it as an annex to the NPPF? More technical issues such as wind turbines and minerals already have separate standards which can rightly be updated and issued as a technical guide.

The problem is that the NPPF uses the phrase ‘noise sensitive land uses’ without defining it.  Again this only takes a sentence and omitting it fails the ‘reasonably self contained’ test.

Two key matters are ommitted from the PPG.  Future projected levels of noise and the key sentence:

noise-sensitive development should not be permitted where high levels of noise will continue throughout the night, especially during the hours when people are normally sleeping (23.00 to 07.00).

Are ministers against a good nights sleep, or is sleep considered a hindrance to economic growth?

The special importance of areas where there is a statutory duty to promote ‘quiet enjoyment’ of the countryside has been omitted. This is key, for example there my be an application to extend a quarry in a national park, where the site around it is not tranquil. This change is a major downgrading of policy in nationally protected areas.

Of greatest concern is the phrase that ‘much of the development needed to create economic development will create some noise’ this will be interpreted as a major slackening of policy. Take for example where an open cast quarry is very close to a village. Here it will not be practical to use conditions. Before such applications might be refused, under the NPPF operators will claim they should be approved. Environmental Health officers will be scratching their heads at the poor science here. Every activity creates noise, why insult everyone’s intelligence in the patronising style of 1980s national planning policy – and a nonsense to mention the level of noise generation without in the same breath not mentioning ambient noise. Its a bit like in a section on energy efficiency saying ‘local planning authorities should acknowledge that much of the development needed to sustain economic activity will use some energy’ it is sending the wrong message.

National Planning Policy Framework Forensics #53 Planning and Pollution Control

This section compares the practitioners draft to PPS23 Planning and Pollution Control (2003).

The following key text from PPS23 should be carried forward
Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to an impact on health, is capable of being a material planning consideration, in so far as it arises or may arise from any land use.

The complementary but different roles of the planning and pollution controls (para 10 of the PPG) are carried over essentially unchanged.

The text that plans should contain policies for potentially polluting development is not carried over, rightly, not every LPA will need it. It should be a matter of local choice whether a local concentration of potentially polluting activities &/or hazardous installations require treatment over and above national policy.

There is no policy on Major Hazards. By effectively delegating this to the HSE successive governments have created an appeal led regime without the HSE being accountable for their decisions, especially with the manner in which the tightening of policy post-Bunsfield has occurred. It should not be necessary for landmark and expensive appeals to determine exactly what policy is.

Cumulative impacts (see para 15 of the PPS) is one area where planning plays an essential role that the pollution control regime cannot. This should be mentioned in the first bullet point in this section of the NPPF. With this proviso the draft seems fine.

The longstanding ‘suitable for use’ test for contaminated land is carried over – but to what standard? This will lead to much argument. The following text from the PPG needs to be carried over.

As a minimum, after carrying out the development and commencement of its use, the land should not be capable of being determined as contaminated land under Part IIA of the EPA 1990.

 

National Planning Policy Framework Forensics #52 Land Instability

This compares the NPPF practitioners draft with PPG14 (1990) and its two supplements on landslides and subsidence.

These are long and in large part comprise technical guidance. The status of this needs to be made clear following the publication of the NPPF. The government oddly seems reluctant to publish TANS (technical advice notes) which was a neat solution in Wales.

The NPPF has land instability in an objective and in a section heading. But that section omits stability other than, in text taken from the PPS on pollution control, concerning pollution risks.

All that is needed is a para:

Issues of land stability should be identified at the earliest possible stage, including at local plan preparation stage, to avoid damage to property and risks to health. The liabilities for stability issues and the responsibilities of investigating it at site specific level, and controlling it where possible, lie with the developer and landowner. The decision maker should ensure that there is adequate evidence before them that the proposed development will be safe and stable, and use conditions where risks can be controlled.

National Planning Policy Framework Forensics #51 Local Green Space

There is a section in the draft meeting a coalition agreement commitment for such a designation. Wisely it is not included in the localism bill, after all Green Belts are a policy designation.

Sensibly it says that this should ‘be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services.’ which might be better put as ‘be complementary with proposals for…’ So that it does not, like village green registrations have, a mere means of blocking any form of local development.

The designation would have three tests:

The Local Green Space designation will not be appropriate for most green areas or open space. The designation should only be used:
• where the green area is demonstrably special to a local community and holds a particular local significance because of its beauty, historic importance, recreational value, tranquillity or richness of its wildlife;
• where the green area concerned is local in character and is not an extensive tract of land; and
• if the designation does not overlap with Green Belt.

The first provisio seems sensible, many plans protect such areas anyway under a variety of local designations. These are the areas that it is unthinkable that an expansion of the settlement should occur. The policy will only be effective if it is used selectively and not as a means of blocking development on ‘ordinary’ countryside of no special value. Perhaps there should be a statement to this effect. Also should include ‘importance to the attractive character and/or setting of a place’ and ‘or provides an important local gap between places’.

The second criteria is ambiguous, consider for example the Green Spaces networks within New Towns such as Harlow or Redditch, hugely valued by locals and part of the masterplanning of the town, but also quite extensive. It would be better if ‘extensive’ were deleted and reference was added to the need to be selective, to leave, where possible, scope for necessary development in the plan period and beyond, and the need to avoid their extent going further than areas visible from, or easily accessible by foot from, their associated settlement. To give an example where some hills frame a town, you could go to the ridge line of the hill but no further.

The last provisio seems unnecessary. Green Belt is not about the beauty of the land but this designation is. It is an additional layer of protection for limited areas.

The statement is that policy should be consistent with green belts. This is not quite correct as the purpose of designation of each LGS will be locally unique and each decision will need to take account of those purposes.

Reimagining Garden Cities for the 21st Century Report Launched

Time to be nice to the TCPA after criticising them in the previous post.

They launched a report today backed by land securities. (they are the main promoters of North of Harlow, and Lodge Hill Medway, though in 2006 they uncessfully tried to block the Ravenscraig New Town).

The thrust of the report is quite clever, by focussing on Howard’s libertarianism, and mechanisms to capture land value, they aim to press sympathetic buttons in the coalition.

They suggest a’community company’ model, owing its roots to thinking on ecotown governance.

In the Community Company model, following site assembly the local planning authority (and parish, town or county councils where appropriate) and the local community would have a stake in the Company, contributing to the masterplanning process and site preparation. The Community Company would then work with housebuilders before incorporating social infrastructure institutions, such as schools and hospitals. Once the development is complete, the Community Company could then be established as a Trust or similar body with an interest in the town’s continuing progress, holding a number of community assets for the ongoing benefit of the town.

The Garden Cities were excellent examples of a collaborative and co-operative local approach to delivering high-quality, well designed places. The significant backing of central government for the New Towns allowed an unprecedented level of development, but the approach taken raised serious questions about
democratic accountability and the role of local people in their communities. We must learn from past experience and find new models of funding and models which
place communities at the heart of the process. Where there is local support for new housing, public-private partnerships – in which government provides the
planning powers and certainty and the private sector the investment – present an opportunity to rediscover our heritage in building attractive, sustainable new
settlements and extensions.

An excellent report, but overly UK focussed. There are many excellent examples of gardens cities overseas, over 20 were built in Florida alone. It should also have focussed more on garden suburbs, a real example of small local initiative to improve housing and one that fits fore-square with localist ideas.

Why the TCPA is wrong about the ‘Duty to Consider Public Views’

A non-government amendment to the Localism Bill has been put forward following the request of a group of bodies including the TCPA and Civic Voice, but notably excluding the RTPI.
Section 20 (6) of the 2004 Planning and Compulsory Purchase Act gives right to object and the right to be heard.

The suggested clause would go further requiringe a written justification for rejecting every response put forward in the course of consultation on a development plan.

These kind of blow by blow reponses, sometimes running to many hundreds of pages, have been going out of fashion since the 2004 act and rightly so.  What matters were the thrust of concerns that were material, and many are not.  At submission stage what matters is whether concerns go to an issue of soundness, and it will be the inspector who will ask if any further evidence is needed.

This would generate a mountain of paper of little purpose, those engaging with the planning system would be forced to plough through it.  Planners would spend months writing it. Taking them away from engaging with communities.  Any omission would be grounds for JR.  In any event it is impossible to give responses on many matters until the chosen strategy or policy is made.

The key is to ensure that major concerns are flagged up in reports for political decision, and those decisions are defensible. But the law requires this anyway.

Birmingham ‘ Most Boring and Least Romantic City in Europe’ Trip Advsior

 

Birmingham was voted the most boring European city as well as the least romantic in a Trip Advisor survey

The results were based on responses from 3,523 European travellers, including 778 Britons.

-London is the easiest to get around, the most exciting, and the most overpriced

– Venice is the most romantic, while Athens is the dirtiest

– Zurich is the cleanest and Stockholm is the safest

– Lisbon is the most underrated while Paris, followed by London, is the most overrated

– Paris has the least-friendly locals, followed by London

– Istanbul is the hardest to get around, while Paris has the rudest cab divers and Rome  the friendliest ones

Brum might feel slightly aggrieved given the efforts in recent years to transform itself, but those efforts may need to be redoubles especially when you have snobs such as Ed West in the Telegraph saying that Birmingham is too ugly to justify a high speed rail link.

The problem I think is that the city city sits on a hill, with views across ugliness in all directions.  It has successfully breached the ring road but needs to be bolder in transforming the several sq km around it.  This has huge potential as being only 3/4 of an hour from London with HS2 it could act as a second metropolitan magnet, but at a fraction of the price. The uplift in the value of these several sq km from HS2 could be captured by the public and fund a radical facelift and infrastructure upgrading.

National Planning Policy Framework Forensics#50 Open Space, Sport and Recreation

This compares the practitioners draft to PPS17 (2006) but also its proposed replacement (which will probably now never be released) PPS10  (2010). Now we have seen the latest leaked version – posted on here. But rather than try and do a running commentary ill stick with the practitioners draft unless there are major deviances (which are few).

This is one area where policy has been very heavily edited down, although the process had already begun in draft PPS10.

The section begins with a statement about assessing needs and setting local standards.  This statement is fine as far as it goes though should be in the earlier section on evidence base requirements rather than here.

Definition of open space – none. This issue always comes up at appeal because there are at least three definitions in statute going back over 60 years, including S336 of the 1990 planning act ‘open space means any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground’. PPS17 said the 1990 act definition applied but also included ‘water’ consistent with the courts interpretations that reference to land in legislation refers to the full terrestrial area including terrestrial water. Draft PPS10 tried clumsily to provide its own definition ‘all open areas of public value’ What then of a private precinct in front of an office block with signs around it saying there is no right of access under the highways act? This kind of example comes up all the time. Currently it has no right of ‘public recreation’ but might be used for that purpose, even if recreation is just walking across. Should such areas be strictly protected in their current form on redevelopment of the whole block, where a new better public space might be proposed? There is nothing wrong with a broad definition, but the policy on replacement must be pragmatic to deal with boundary cases such as this. The localism bill should have dealt with this confusion by providing a simple revised definition. Without a definition national policy cannot apply.

On the protection of open space there is a major watering down of policy, although that process had already begun with draft PPS10 last year.

The key statement from para 10. of PPS17 is as follows:

Existing open space, sports and recreational buildings and land should not be built on unless an assessment has been undertaken which has clearly shown the open space or the buildings and land to be surplus to requirements. For open space, ‘surplus to requirements’ should include consideration of all the functions that open space can perform. Not all open space, sport and recreational land and buildings are of equal merit and some may be available for alternative uses. In the absence of a robust and up-to-date assessment by a local authority, an applicant for planning permission may seek to demonstrate through an independent assessment that the land or buildings are surplus to requirements. Developers will need to consult the local community and demonstrate that their proposals are widely supported by them.

The last sentence clearly has no place in national policy, the level of support or objection is not material it is the strength and relevance of what people say, but apart from this it is very strict.

By contrast the proposed replacement.

Existing open space, sports and recreational facilities and land should not be built on unless:
• an assessment has been undertaken which has clearly shown the open space or the land to be surplus to requirements; or
• the need for and benefits of the development clearly outweigh the loss.

The problem is five fold, firstly ‘surplus to requirements’ meaning. it should be ‘surplus to current and projected requirements- taking account of the potential of the open space’

Secondly the ‘and’ part, also in draft PPS10. This would be a major watering down of policy. It could always be argued that ‘growth’ was the priority. We could be back to the days of pre-PPG17 where we had a major chipping away of open spaces with small token replacement open spaces being offered on part of the site. In areas with a large surplus of playing fields and a large shortage of public open space then some trade off – to be decided locally, that benefits both sport and informal recreation could be advantageous. But the drafting does not put local people in the driving seat – it is a licence for appeal led planning where the arguments about benefits and losses would be heard.

Thirdly the omission of the section on loss of playing fields. This is essential because the sporting community is a wider than local interest.

Fourthly why only ‘existing’ if a local plan allocation is proposed to be built on, or compensatory land for open space lost elsewhere is this not just as bad.

Finally the omission of the section on replacement, essential to add flexibility.

To avoid these problems I would suggest the following rewording:

Open space’ is defined as an open areas of of public use, recreation use (whether or not there is a right of access and whether or not the land is publicly owned), permanent allotments (statutory and non-statutory), or land planned for, used or formally used as a cemetery. It includes both land-based such as streets, civic squares, parks, public gardens, playing fields or other open land for recreational or public use or water based such as rivers, canals, lakes and reservoirs.

Open space, and sports and recreational buildings and land should not be lost to development unless:

1.  a robust assessment has been undertaken which has clearly shown the open space or the buildings to be surplus to requirements, (surplus means to all potential requirements, not just the current use); and
2. any loss of a small area would be clearly outweighed by the need for and benefits of the development; or
3. development provides the opportunity to exchange the use of one site for another to substitute for any limited loss of open space, or sports or recreational building. The new land and facility should be at least as accessible to current and potential new users, and at least equivalent in terms of quality and function.

Loss of playing fields is not acceptable unless:

1.  the proposed development is ancillary to the use of the site as a playing field (eg new changing rooms) and does not adversely affect the quantity or quality of pitches and their use;
2. the proposed development only affects land which is incapable of forming a playing pitch (or part of one);
3. the playing fields that would be lost as a result of the proposed development would be replaced by a playing field or fields of equivalent or better quantity and quality and in a suitable location; or
4. the proposed development is for an outdoor or indoor sports facility of sufficient benefit to the development of sport to outweigh the loss of the playing field

Ill deal with the proposals for Local Green Space for Local Communities in the next section.

The sections on Green Infrastructure carry over the draft new advice in PPS10.