#NPPF Select Committee Response Part 4 – The Presumption in Favour of Sustainable Development

Is the presumption in favour of sustainable development a balanced and workable approach?

No, neither. The presumption – or PISD as it has become known – has a central logical flaw. The fact that sustainable development cannot be achieved without certain kinds of growth doesn’t imply that all kinds of growth promote sustainable development. Strikingly there is no presumption against unsustainable development. It is unbalanced.

A related flaw is apparent if we look at para. 14 which sets out 3 logical combinations but is silent on the fourth.

  Development Plan Adopted and Up to Date Development Plan either non adopted , not up to date, Silent or Indeterminate
Scheme accords with Development Plan Approve without delay Grant Permission
Scheme contrary to Development Plan NPPF is silent Grant Permission

Now the assumption is that, as in the top left box, section 36(1) of the Planning and Compensation Act (2004) applies[1].

If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

But a reader from outside a planning background will not know this. The NPPF is a document that is supposed to be usable by non-experts but which will in fact but unusable unless you know the legal principles on which the planning system is based and on which the NPPF is silent. It will not be usable by lay people – contrast it with, for example, the opening pages of Planning Policy Wales which sets these principles out clearly.

The presumption in favour of development is quite old, dating back to the Circular accompanying the Chamberlain Housing Act of 1923[2]

the presumption should always be in favour of the person seeking consent to interim development, and obstacles should not be placed in the way of such development, except in the case where it is clearly detrimental to local interests and needs

Over the years the wording of it, as a policy not statute law, has changed. It was given particular stress in circular 22/80. Following the passage of the Planning and Compensation Act 2001, which introduced the Presumption in Favour of the Development Plan national policy at the time (PPG1) was alteration to square with it – though there was a tension. In 2005 PPS1 abolished the Presumption in Favour of Development – Leaving only the Presumption if Favour of the Plan. This created a problem. It depended on up to date plans.

The poor, and late, plan coverage has been a problem throughout the history of British Planning. Currently around 30% of UK planning authorities have adopted core strategies[3]. If plans are slow to prepare and late, and plan making is the primary means to provide additional housing, then they will create a continuously growing shortage of housing and an ever greater amount of new housing that needs to be allocated to catch up.

The national housing shortage is well documented[4]. The number of households in England is projected to grow to 27.5 million in 2033, an increase of 5.8 million (27 per cent) over 2008, or 232,000 households per year[5]. This translates into a requirement for new dwellings of roughly 240,000 dwellings a year. In Q2 2011 housebuilding fell 4% in England from the previous quarter. In 2011 we look likely to build only around half the houses needed.

When the Q1 housebuilding statistics were released the government claimed this was evidence that the policies of revoking regional plans and introducing the New Homes Bonus was working. In fact analysis of the data showed that the Q1 rise was due to a rise in London, the one region to have maintained regional housebuilding targets[6].

Though plan making progress has been unacceptably slow there has been an upturn in housebuilding levels since the 2004 Act, The Barker Review 2004 and the Housing Green Paper 2005 which set national housebuilding targets, progress sustained until the Great Recession. This progress has been undone, in part by the by the recession and in part by the dramatic lowering of housebuilding targets in development plans since May 2010 (this is not a political point simply a statement of fact). A reduction estimated by BNP Paribas in June as being on average 20.6% per authority[7].

From Planning Inspectorate Data it is clear that in early 2010 around 2/3rds of English Planning Authorities were programmed to have examinations completed and adopted plans in place by the end of 2011. So clearly despite the slowness of plan making a big ‘bulge’ of catching up was due to come forward. Finally by the end of 2010 was programmed national coverage of regional plan housing targets. So plans were coming forward, despite a desperate dragging of feet by a minority of Local Planning Authorities, with up to date numbers meeting housing need, otherwise they would not have been found ‘sound’. When these plans were adopted there was sure to be a bulge in housing starts. There always is when new plans, releasing new land, are adopted.

All of this good work was undone by the unwise, and as it turned out unlawful[8], ‘revocation’ of regional plans in June 2010. They still have not been revoked. The Localism Bill has not yet been granted Royal Assent. Even then the SoS has undertaken in April, not to enact Secondary Legislation until, as he is required to do under a European Directive, a Strategic Environmental Assessment of the effects of revocation[9], consulted on this and react to the results of consultation with an open mind. This consultation has not yet even begun, but is required to by the EU directive, be at an ‘early stage’ of the decision making process. One that the SoS needs to take with an ‘open mind’. Given ministers statements and caselaw it is likely that statements of predetermination will see a successful legal challenge. Please question minister on the reason for the delay. Please also question the minister, in the light of his wholly inadequate response to your committees earlier report on the abolition of regional plans[10], that if the SA/SEA finds significant adverse social, environmental or economic impacts will they reconsider the ‘intention’ to revoke? In any event it looks like that it will be at least a year more of regional plan targets before they are revoked.

Since the June 2010 statement there has been a dramatic slowing of planning for housing, as your committee found. Plans about to be submitted have been delayed by a year or more. Even plans mid examination have been delayed, with one examination (South Wilts) that should have lasted at most a few weeks now lasting over a year as the authority rewrote it to reduce housing. Even in one case a plan was withdrawn the day it the inspectors report was received (Coventry). Other plans have been withdrawn the even though they have been submitted (Aylesbury), and the SoS has allowed them to do so (the power to prevent this stalling is proposed to be removed by the Localism Bill). So for these and many other local planning authorities effectively starting again they are at least 2 years from adoption.

What we have seen is the largest and most important housing sites in England deleted. Growth areas around Milton Keynes, Aylesbury, Northampton, Bristol and many many other town have now gone, or have been frozen in ministerial induced uncertainty. The system of planning for housing has been thrown into chaos. Ministers have stated that eventually the New Homes Bonus will induce more housing to be allocated, one has to ask where? Can ministers name a significant number local planning authorities that have decided to increase its housebuilding levels above regional plan levels. Rather LPAs have overwhelmingly either kept to the same targets or significantly reduced them.

Seeing this dramatic scaling back one has to ask if Ministers are giving up on the plan-led route and are looking for a plan b.

Frustration with slow progress on plan making has affected national policy several times before and I would suggest to your committee it is the key issue regarding the NPPF.

Ensuring that plans were simpler and quicker to prepare were central to the Falconer reforms enacted in 2004, on which I advised then then ODPM putting forward the concept of ‘core strategies’. Unfortunately the implementation was poor. By creating new statutory plans rather than amending existing statutes there was the impression given that everything had to start again in new form. Wales, which instead had a one page reform of development plan law in the form I had recommended, now has 70% coverage as opposed to England’s 30%. Rather than making large ‘strategic’ housing allocations part of strategies this was shifted back – an error not corrected until 2008.

Some pre-development authorities have pressed forward, others awaited until controversial issues were resolved, a minority has dragged their heels, waiting for the election. Those recaltrants, urged on by then shadow ministers, felt they would have the ability to set what targets they liked. The now ministers have sensibly considered that this would result in a unacceptable slashing of housebuilding and plans should meet need, or ensure that it is met elsewhere. But those local authorities now feel betrayed[11]

The problem was there was never enough carrot and stick to rapidly produce plans that local politicians saw as career destroying. The current government has rightly seen the need to have more of both. The issue is how it is done.

The tactic has been set out by John Howells MP in ‘Open Source Planning’ the consequences of which were laid out in a Speech he made to the HBF in February.- where a development plan was out of date it was then to be ‘assumed to have a completely permissive planning system’ and a developer could then build ‘what they like, where they like and when they like , provided they met new national planning guidance being worked up in tandem with the localism bill.’ This is exactly what has been introduced in the NPPF. Your committee may well ask whether this is Town and Country Planning at all?

What will happen then where a planning application comes forward following adoption of the NPPF and relevant policies in the NPPF are not up to date?

This is an issue that has been current since the Barker Review of Land Use Planning in 2006 , it did not originate with the coalition government. From this came the suggested wording that there should be a presumption in favour of development where a plan was out-of-date, absent, silent, or indeterminate. This was proposed in the draft PPS4, applying only to economic development not housing, but following consultation feedback did not find its way into the final version.

The wording of the NPPF in para 16 mean that in this case decisions makers should ‘grant permission…unless unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.’ (para. 14)

In addition where the application is for housing, and the plan cannot demonstrate a 5 year housing supply then para. 110 baldly states that ‘planning permission should be granted[12] no if and no buts, effectively a ‘double presumption’.

It unlikely that there will be a single development plan in the country that will be up to date in the manner that the NPPF requires when it is finalised[13]. Even the 30% of adopted plans will not have the extra 20% of housing required by the NPPF in the first 5 years (para 109).

So early next year where a council has not been meeting its 5 year supply, which very few will because of the recession and the NPPF raising targets, the presumption as worded means that the decision maker will be required to grant permission unless it is contrary to the NPPF.

However with the default ‘yes’ in the draft NPPF there are actually very few cases where it would contrary and could be refused. There are obvious examples where policy similar to current applies, such as AONB, European protected sites, Green Belt, the new Local Greenspace designation (for small areas when plans are adopted). But these only apply to a minority of areas. What is notable is how the NPPF strips away policy protecting most of England. I will go into the key problematic policy changes later but some are worth highlighting to illustrate just how much the NPPF has opened the taps to development in many areas:

-Firstly the policy preference towards previously developed sites is removed

-The protection of the countryside for its own sake is removed, a policy that has stood for 60 years.

-The protection for employment sites is removed, even where there is a strong demand for and local shortage of such sites.

-There is no protection for attractive or sensitive landscapes[14], other than national designated areas or small areas of local green space

-The ability to set a strategy to prioritise some sites over others when there is a shortfall is removed[15]

-There is no requirement that new housing is well designed, only that its design is not ‘unacceptably poor’

What this means is, in effect, in the large majority of cases such applications will have to be approved. Realising this a flood of speculative applications, which previously would have been refused, are coming forward.

What the draft NPPF does is in effect turn back planning much of planning policy 30 years to 1980. Noted planning lawyer Martin Goodall saw the change coming in March 2011.

The general approach of the government, developed in the Conservative party’s final years in opposition, appeared to be rather anti-development, and brought joy to hearts of the NIMBYs. Now, we are getting pronouncements which sound much more like those of Thatcher and Heseltine post-1979, promoting the idea that development could and would be the engine of economic recovery……Could we be about to see the end of the ‘plan-led’ system and a return to planning by appeal? …Perhaps Pickles and his merry men should make a start by dusting off Circulars 9/80, 22/80, 15/84 and 14/85 and re-publishing them in modern form[16].

This is just what we have seen. These ancient and discredited circulars from the Nicholas Ridley era of planning by appeal have indeed been resurrected. Whole phrases and policies from these circulars have been reborn in and as the NPPF.

As of August 2011 local planning authorities now have 5-8 months to prepare new development plans before the maelstrom of the presumption is released. This is unrealistic, even the swiftest plan revision will take a year. Indeed many of the staff who would be preparing plans will be fighting appeals for speculative applications on unsuitable sites.

What is worse the fundamental platform on which updated plans are prepared, knowing what the housing target should be, has been taken away with the planned revocation of regional plans. Decision makers are unclear on what to base future 5-15 year housing targets. In the West Midlands and South West[17], where regional strategies are out of date and reviews never finished, plans in some districts are over 10 years old. This has given the SoS considerable difficulties in a recent appeal[18] deciding exactly what the 5 year target should be based on. Indeed in that same case the scheme was refused on ‘localist’ anti-development grounds last year – and following judicial review with the reinstatement of regional plans – was approved under the post-budget ‘planning for growth’ this year. This illustrates the u-turn in national planning policy away from localism.

One saving grace of the NPPF is that sites still have to be suitable for housing. But local planning authorities will not be able to choose between the most suitable and less suitable. If a site meats the minimum thresholds of the NPPF, in terms of infrastructure, flood risk, having some potential access to public transport etc. then it will be acceptable at ‘5 year supply’ shortage appeals, even though the site might be the least suitable, least accessible and least preferred site around a settlement. This completely undermines planning and plan making.

The approach contrasts with current policy policy in PPS3[19] para.s 60-72 (and which certainly is too long and woolly) which requires ‘management action’ when there is a shortfall – i.e. the local planning authority deciding which additional sites to bring forward, against its strategy.

It is essential that where land releases take place it takes place against a strategy. Otherwise we could see chaotic appeal led planning of the sort we saw in the 1980s where housing is planned on a site by site basis, without due consideration, and without regard to the view of the local community about how their future should be shaped.

In many cases, particularly for many of the ‘cause célèbre’ ’ housing sites[20], it is not an issue of whether but when sites are developed. At many appeals local groups may oppose a site in principle, but the arguments turn not on a sites suitability, because alternative sites often turn out to be far less accessible and sustainable, but when. Does the area have a 4 year housing supply or 7, for example. Similarly at development Plan EiPs. This often comes as a surprise to local residents. But understanding this can take the heat out of many arguments about housing targets. A slightly higher or lower housing targets will in most cases simply mean whether a site is pushed back or brought forward by a small number of years. The real priority is to ensure that all English local planning authorities have a ‘rank order’ of development sites in a housing delivery plan.

Such an approach is already partially in place with almost total coverage of England now with Strategic Housing Land Availability Assessments (SHLAAs). This shows that there is plenty of potentially suitable housing sites, but whether or not they are acceptable depends on a strategy. Sites may be physically ‘suitable’ but not ‘acceptable’ according to a strategy which sets growth in one direction or another to ensure acceptable cumulative impact and matching development to infrastructure.

I propose a reform which will ensure that there is continuous and steady delivery of new housing at a pace to meet our nations needs – the national government’s main concern, but in a way that is planned and occurs in a manner determined by local government and communities – local government’s main concern.

Such an approach would have three components.

1) Set a strict, tough and binding statutory timetable for plan making. With a period of one year (till end of 2012) before the full force of the ‘presumption’ applies to new housing to enable local planning authorities to get new plans in place.

2) All local planing authorities to publish a ‘housing site ranking’ in advance of their final plans – with appeals determining whether sites in that ranking are brought forward or not

3) Tough new structures over the duty to cooperate’ to resolve inter-authority squabbles which are holding up plan making.

I deal with the the third issue in a later section. All three parts are crucial to an action plan that would work.

The idea of a short delay before the ‘presumption’ comes into play has been suggested in Open Source Planning and also supported by an Jack Dromy MP. It is possible to get plans in place within 1 year. The regulations allow for it and the ‘stick’ of the presumption coming into play encourages it. Amendments to the localism bill could make it statutory and set financial and other penalties, such as powers in default, or powers for planning consultancies to take over plan making in default, if plans are not in place. All or part of The main issue is a logistical one, determining many plan examinations at once in Autumn 2012. This is manageable. Local Planning Authorities can prepare joint plans to reduce the number of examinations. There were a number of plan examiners laid off in 2010 because of a ‘lack of demand’ with many plans delayed. Temporary and retired inspectors can be brought in. Planning barristers can be drafted in as temporary inspectors rather than fighting appeals (each appeal of course takes two barristers). It is doable, with resources and efforts. Resources which would otherwise be spent at appeals.

The housing site ranking is simply an extension of what many authorities are doing already. Even before an authority finalises its housing target in its submitted plan it can publish its preferred site ranking at an earlier stage. All local authorities now have consulted on directions of growth and so there is no reason why they cannot decide on a rank-ordering, even though they might argue that at a certain point development should not take place. This would be then used on appeal if an area fell short on its 5 year supply. Where a site was next in line the decision would be straightforward. If it was further down an appellant would need to successfully argue that it should be preferred over other higher ranked order sites.

This would be much better than the crude binary ‘yes’, ‘no’ approach. If a local group wanted to argue that a site they wished to protect should be ranked lower, it would require then to demonstrate that other sites should be ranked higher. The reality that tough decisions on housing cannot be dodged would be apparent.

Finally your committee might want to consider that the ‘presumption in favour’ might also be balanced by a few other positive planning presumptions in favour, to ensure that poor schemes do not slip through. I would suggest:

  1. A presumption in favour of quality urban and landscape design
  2. A presumption in favour of priority to use of sustainable modes of transport;
  3. A presumption in favour of sustainable and inclusive communities (paras. 124-127 of NPPF) &
  4. A presumption in favour of increased biodiversity (para. 169)

2 thoughts on “#NPPF Select Committee Response Part 4 – The Presumption in Favour of Sustainable Development

  1. Pingback: Monday Roundup 22nd August #NPPF « Decisions, Decisions, Decisions

  2. Pingback: #NPPF Draft Select Committee Response in One Post « Decisions, Decisions, Decisions

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