Homebuilders Fed #NPPF ‘ will inevitably be appeal-led’,’may not give investors the confidence they need to support.. economic growth’

Some selected extracts from the HBF evidence to the DCLG Select Committee

The duty to co-operate is the least effective part of the Localism Bill and of the NPPF. There are parts of the country where the soon-to-be-abolished regional mechanisms brought about a measure of cross-boundary cooperation never previously seen. Their abolition is likely to result in the resumption of non-co-operation, particularly on the perennially difficult issue of distributing housing growth across a major conurbation. We are pessimistic as to the outcome in these situations and there might be a role for LEPs to bang heads together, and “name and shame” non-co-operating authorities. However, we propose strengthening the NPPF to make it clear that evidence of effective cross-boundary co-operation, where there are issues requiring it, should explicitly be made a test “soundness” of a Local Plan…

The new system puts those same decision makers squarely in the firing line and that is politically the greatest weakness of the NPPF. We strongly welcome much of what it says (and we try in our response above to demythologise what it does say), but it is a policy that will rely heavily, in its initial years, on the Secretary of State of the day being willing to back the Inspectorate so that individual Inspectors have the courage to find plans unsound, when appropriate, and to grant appeals, in the absence of sound plans, where applications are made for sustainable development. The system will inevitably be appeal-led for a time, until plans are put in place.

The new system puts those same decision makers squarely in the firing line and that is politically the greatest weakness of the NPPF. ..
it is a policy that will rely heavily, in its initial years, on the Secretary of State of the day being willing to back the Inspectorate so that individual Inspectors have the courage to find plans
unsound, when appropriate, and to grant appeals, in the absence of sound plans, where applications are made for sustainable development. The system will inevitably be appeal-led for a time, until plans are put in place.

We find it hard to believe that, as a General Election approaches and given high profile campaigns, such as that being currently run by the Telegraph, which daily excoriate Ministers, they will apply their own policy. The housebuilding industry and other industries and developers need stability and confidence to invest, as do banks, if they are to fund developers.

But the NPPF, in the absence of top-down numbers, is a highly discretionary policy that  that underpins the draft. Confidence will only be injected if, despite the politics, some exemplary decisions on Local Plans and appeals are handed down by the Inspectorate and the Secretary of State, at an early stage.

The TCPA DCLG #NPPF Select Committee Written Evidence

Written evidence from the Town and Country Planning Association (TCPA)  Page 122 of the PDF – My favourite part is para 5.4.  Good response I only felt it necessary to comment on one small legal mistake.

1. About the TCPA
1.1 The Town and Country Planning Association (TCPA) is an independent charity
working to improve town and country planning. Its cross-sectoral membership includes
organisations and individuals drawn from practitioners in local government, private
practice, housebuilders, academia, third sector organisations and special interest
groups. It puts social justice and the environment at the heart of policy debate and
champions fresh perspectives on major issues of planning policy, housing, regeneration,
the environment and climate change. Our objectives are to:
• Secure a decent, well designed home for everyone, in a human-scale
environment combining the best features of town and country
• Empower people and communities to influence decisions that affect them
• Improve the planning system in accordance with the principles of sustainable
2. Introduction
2.1 The TCPA wants to see an outcome driven and visionary planning system which is
responsive to people’s needs and aspirations and delivers long term sustainable
development for the nation.
2.2 While planning can claim many substantial achievements, we recognise that the
current system can be unresponsive and remote from communities and does not always
deliver the high quality outcomes vital to building a better future for England. The
Government’s draft National Planning Policy Framework (NPPF) seeks to simplify and
streamline planning policy. The TCPA recognises the value of removing unnecessary
duplication and complexity in national policy while retaining proven ideas and
approaches which have been working well. Our key objective is to ensure that the new
NPPF is both visionary and workable. It must help deliver high quality, well located
homes; create dynamic local economies; and deal with the pressing challenge of climate
change. In reforming the planning policy, we must ensure that the new framework:
• Contains a powerful and coherent operational definition of sustainable
development based on the 2005 UK Sustainable Development Strategy1
• Increases certainty and clarity
• Leads to better outcomes for all sections of society
• Is accessible to all sections of society with a clear governance structure
recognising the importance of community rights and democratic accountability

3. The purpose of the NPPF
3.1 The draft NPPF is intended to replace the existing suite of Planning Policy
Statements (PPSs) and Planning Policy Guidance notes (PPGs) with a concise unified
document. All PPSs, PPGS, Minerals Policy Statements (MPS) and Minerals Planning
Guidance (MPG) will be revoked as well as a number of ‘Chief Planning Officer’ letters
and some circulars (see table at Para 38 of the Consultation document). It is now clear
that the NPPF will not replace all circulars and guidance and that further consideration is
what further advice2 is necessary. The consultation is made of three key documents:
• ‘Draft National Planning Policy Framework’
• ’Draft National Planning Policy Framework: Consultation’ which sets out
questions and how to respond
• ‘Draft National Planning Policy Framework: Impact assessment’ (Note: There is a
separate equalities impact assessment)
3.2 This latter document is also in the form of a consultation and contains many of the
assumptions behind the policy in the NPPF. It sets out the Government’s evidence base
for streamlining planning policy into one consolidated Framework. The TCPA is
concerned that the impact assessment does not contain a robust evidence base and that
it does not reflect the potential costs of the proposed new framework.3
3.3 The TCPA believes there should be three tests applied to the new NPPF:
• Vision…does the NPPF set out the right challenges facing the nation and does it
offer the right spatial vision for solving them?
• Principles…does the NPPF contain the right principles for planning in terms of
sustainable development? Are these principles articulated clearly?
• Workability…Is the NPPF deliverable? Is the policy clear and consistent and
does it reflect the law?
3.4 The provisional view of the TCPA is that the current draft does not meet these tests
but that key amendments, particularly around the definition of sustainable development,
would substantially improve the outcomes for business and communities.

4. Does the NPPF contain the right vision for England?
4.1 As drafted, the NPPF does not set out a clear and ambitious vision for the future of
England. Neither does the framework contain a section which deals with the multiple
challenges to the nation over the next 20 years. The document focuses primarily on
short term growth issues and would benefit from articulating a coherent analysis of the
multiple social, economic and environmental challenges facing the nation in the medium
and long term.
4.2 We understand that it was not the Governments intention to make the NPPF a
spatial framework for the nation and as a result it does not address the diverse spatial
nature of the nation. The draft NPPF does not reference the very particular urban fabric
of England and the role of key urban concentrations such as London. This places
significant limitations on the usefulness of the document in guiding our collective
strategic future.

The TCPA strongly recommends that the Government sets out a spatial vision for England that would deal with the broad implications of for example, demographic and climate change and help reconcile the twin, and often conflicting, imperatives of localism on the one hand and national pro-growth agenda on the other. The NPPF would also benefit from suggesting the kind or location of new settlements which might be preferable (for example between urban concentration or rural dispersal). A clear and positive statement of how the NPPF relates to other strategies such as the suite of National Policy
Statements (NPS), the National Infrastructure Plan, the Natural Environment White Paper, and the UK Low Carbon Transition Plan would be very helpful

5. Key Planning Principles
5.1 The draft NPPF sets out the overriding policy principles for planning. It then
discusses plan making and development management before focusing on a number of
specific policy issues. In terms of planning principles there is clearly a hierarchy in the
document which decision makers will need to address and which affords more weight to
the section headed ‘Core planning principles’ (paragraph 19, page 5).
5.2 Sustainable development: The first principle of the NPPF is sustainable
development, but expressed very differently to the 2005 UK Sustainable Development
Strategy. Unlike the current PPS1 (2005), the NPPF does not reference the UK
Sustainable Development Strategy and, as a result, contains no coherent articulation
of how sustainable development principles should be applied in spatial planning.
It also ignores the very valuable learning and knowledge which underpinned the
ambition of the 2005 UK Strategy. The reference to the Brundtland definition in
paragraph 9 of the draft NPPF does capture the notion of protecting the interests of
future generations but it does not provide a detailed mechanism for its implementation
which is contained in the UK Sustainable Development Strategy. For example, one the
key bridging concepts between Brundtland and practical delivery was the notion of ‘living
within environmental limits’ (see Annex 1). The draft NPPF contains no reference to this
foundational aspect of sustainable development. Neither is there any content on social
justice or equality which featured heavily in the existing PPS 1 (see in particular
Paragraph 13 of the existing PPS 1). The net result is that the draft NPPF does not
contain a recognised or comprehensive definition of sustainable development and does
not appear to have the operational principles necessary for its delivery. This is a crucial
concern because the new test of whether a development is ‘sustainable’ in relation to the
presumption in favour of sustainable development is now to be solely the NPPF which
itself re-defines sustainable development as largely economic growth.4

The TCPA strongly recommends that the definition of sustainable development in the NPPF accurately reflects Government’s own 2005 UK Sustainable Development Strategy. The NPPF should then articulate a series of outcomes focused priorities which can be the basis of local plan-making and which can be used for monitoring progress on key economic, social and environmental goal

5.3 The NPPF makes clear in a number of places that the key objective of the planning
system is ‘sustainable economic growth’. The Impact Assessment document goes
further to identify the liberalisation of planning policy as a major benefit to the private
sector5. Decisions should be made to support growth unless such growth impacts on
defined statutory designations. This formulation of a presumption in favour of sustainable
development and a residualised understanding of the ‘environment’ (as simply
designated sites) risks putting decision-making back to the policy environment of the
early 1980s.
5.4 The presumption in favour of sustainable development: The second major
principle defined by the NPPF is the presumption in favour of sustainable development
which is recognised in the consultation document as the primary mechanism to facilitate
economic growth. The presumption works as a deregulatory measure (‘the answer to
development and growth should wherever possible be ‘yes’, except where this would
clearly conflict with other aspects of national policy’ Para 16 NPPF consultation
document.) The claim that the presumption will be sustainable rests with reference to
the contents of the NPPF which, as outlined earlier, is not a recognised expression of
sustainable development principles.
5.5 There will now be two primary presumptions at work in the planning process. The
existing presumption in favour of the plan as set out in law (Section 38 of 2004 PCP
Act), and the policy presumption in favour of sustainable development. Initially, there is
likely to be a significant tension between these two ideas but the Government’s intention
is to ensure that eventually all plans are founded on the presumption in favour of
sustainable development. This is complex because it had been previously assumed that
the presumption was meant to operate where plans were ‘silent’, ‘out of date’ or
‘indeterminate’. In fact, the presumption is now also the core principle of both planmaking
and development management.6
5.6 This raises questions about how a general policy to say ‘yes to development’ sits
alongside a plan-making process which has to go through a Strategic Environmental
Assessment (SEA) as well as allocate sites strategically, and often sequentially, to
ensure sustainable patterns of development. In basic terms, if the default answer to all
development is yes then what function does a plan have? The risk is that while the
NPPF places an emphasis on the plan-led system, the plans themselves may be
residualised to mapping statutory designations but unable to set a strong positive vision
for the future.
5.7 For example, it may be hard to defend long term commitments to highly sustainable
developments against shorter term speculative sites (particularly with the impact of the
viability test discussed below). It is also interesting to reflect on how a presumption
which applies the NPPF to test all cases where plans are ‘absent, silent, indeterminate
or out of date’ relates to the ambition for localism.

The role of policy presumptions in the planning process
There has been much debate in recent weeks as to the real effect of the Government’s presumption in favour of sustainable development. Minsters have pointed out that such presumptions are not a new concept in planning policy.
Policy presumptions do in fact have a long history in planning and can most obviously be seen in relation to Green Belt (PPS2) and opencast coal (MPG3). A general presumption in favour of development was a key operational principle of planning for many years.
This general presumption in favour was contained in national policy (See PPG 1 1988), Ministerial Statements and was supported by case law.
However, this position changed with the introduction of the Planning and Compensation Act 1991 which introduced in section 54a an effective presumption in favour of the plan in decision-making. This ‘represented a major departure’ from the traditional
presumption in favour of development position (Telling and Duxbury, Oxford 2009 pg 224). This position did not make the plan overwhelmingly determinate in all cases, because all presumptions are capable of being overturned by individual circumstances,
but it was a major reinforcement of the plan-led strategic approach. In short, it refined the general presumption in favour of development to a focused presumption in favour of development described in the plan. The language of the general presumption in favour of development was subsequently removed from national guidance and does not feature
in the current PPS 1 (2005). The change to a presumption in favour of the plan was in part intended to combat the growing tendency in the 1980s for planning by appeal where developers felt less confident that the contents of plans were a meaningful guide to planning outcomes. (Appeals increased to a record of 33,200 in 88/89 with the success
rate rising from the average of approximately 33% to over 40%. As a comparison in the buoyant years between 2002 and 2008, appeals never exceeded 23,000 (PINs Statistical Reports)). Planning by appeal had mixed outcomes but undoubtedly led to a growing lack of confidence in the system on behalf of communities and business.

5.8 There is a very real risk that without further clarity the new presumption will act in the
short term to undermine a plan led approach (see sections 13 and 14 on transitional
arrangements) resulting in greater appeals and uncertainty. This outcome threatens
public legitimacy and economic development.

6. The TCPA position
6.1 The TCPA wants to see a positive and visionary planning system which is not
inhibited by unnecessary process leading to mediocre outcomes. The best way to
achieve this is through smart outcome driven plans which offer both strategic vision and
allow for maximum community participation.
6.2 It is not clear to the TCPA that the presumption, as currently described, helps deliver
this objective. If the Government is to pursue the presumption it should be applied very
carefully with a clear understanding of the intended objectives and avoiding the risks of
unnecessary delay and uncertainty which flows from the issues described above and in
particular from the lack of a clear definition of sustainable development.
6.3 The presumption should be used to support plans and plan-making and not to
undermine them. There should be an unambiguous statement of support for the planled
system where plans are up-to-date. The test of ‘up-to-date’ should continue to have
an element of proportionality and flexibility. Plans themselves should not be subject to
the general policy presumption in favour of sustainable development, but to existing
provisions of the NPPF to deliver for the development needs of communities and
business based on a clear and objective evidence base.

6.4 Where plans are absent or clearly out of date there may be a case for a return to the
presumption in favour of sustainable development but only if sustainable development
has a proper operational definition based on the 2005 Sustainable Development

7. Strategic cooperation
7.1 The NPPF deals briefly in paragraphs 44 to 47 with the challenges of strategic
cooperation. The text does not significantly add to that contained in the primary clauses
of the forthcoming Localism Bill. It does include a list of key issues for cooperation by
references to the ‘strategic priorities’ which are set out in Paragraph 23. These issues
include housing, transport and climate change and provide a useful starting point for the
scope of cooperation. However, there is no prescription on the form of cooperation and
we remain concerned about how displaced demand will be dealt with in relation to
housing, energy or minerals.
7.2 The separate DCLG consultation on Local Planning Regulations sets out a list of
public bodies subject to the duty to cooperate. This list contains a selection of public
bodies but omits any reference to key private sector partners, such as infrastructure
providers, whose involvement is crucial to planning for strategic growth. This list could
be strengthened by including organisations such as Network Rail and other major

In addition to the list of key issues for cooperation, the TCPA recommends the duty to cooperate is strengthened in the Localism Bill to include a definedoutput of cooperation and a geographical boundary. (See TCPA Localism Bill Briefing, May 2011, full reference on last page)

8. Neighbourhood planning
8.1 Neighbourhood planning continues to be a feature of the NPPF but the scope of
such plans appears to be restricted. The NPPF makes clear that neighbourhood plans
should ‘reflect’ and ‘positively support’ the strategic objectives of the Local Plan and must also be subject to the presumption in favour of sustainable development. The need for general conformity between such plans is logical and welcome, but there are further restrictions on setting local standards in specific policy areas and in particular on building sustainability where there is a restriction to follow national standards.7 Taken together with existing restrictions in relation to housing, minerals and waste, it is important to ask whether the complexity and cost of neighbourhood planning meets the aspirations and expectations of many local communities.

The TCPA recommends that Government clearly sets out for communities what they can expect from the neighbourhood planning process so that communities can understanding the scope of their influence over local planning issues.

9. Core planning principles
9.1 The core planning principles on page 5 of the NPPF place an emphasis on
commercial data and price signals8 but make no specific references to climate change
adaptation or mitigation. The list is a mixture of ideas which do not appear to offer a systematic approach to the delivery of sustainable development. Likewise the list of issues indentified as key in developing a proportionate evidence base for plan-making does not contain any requirement to gather data on carbon emissions.9 Neither is there any requirement, advice or guidance on how to monitor or review progress against any of the strategic priorities set out in the NPPF. This omission has long term consequences for data quality in England and limits the ability of the planning service to understand its collective progress against key national and international targets on housing, energy and carbon reduction.

The core planning principles on page 5 of the NPPF place an emphasis on
commercial data and price signals8 but make no specific references to climate change adaptation or mitigation. The list is a mixture of ideas which do not appear to offer a systematic approach to the delivery of sustainable development. Likewise the list of issues indentified as key in developing a proportionate evidence base for plan-making does not contain any requirement to gather data on carbon emissions.9 Neither is there any requirement, advice or guidance on how to monitor or review progress against any of the strategic priorities set out in the NPPF. This omission has long term consequences for data quality in England and limits the ability of the planning service to understand its collective progress against key national and international targets on housing, energy and carbon reduction.

9.2 The TCPA has long campaigned for the benefits of sustainable, comprehensively
planned new settlements and the NPPF is completely silent on this issue. There is no
reference to the wide ranging benefits which comprehensively planned new settlements
can provide. This omission makes if difficult for local authorities to play a leadership role in the provision of new settlements. Significantly, the NPPF also does not give a general indication of the kinds of new growth the government might wish to see. For example, previous guidance suggested a concentration of growth on existing urban areas and on brownfield land; both of these commitments have been withdrawn. Other organisations have already raised concerns about additional ‘lost’ policy areas, notably cultural and artistic assets. The TCPA strongly supports the inclusion of guidance on these issues in the NPPF.10

The TCPA recommends that there is specific reference to the wide ranging
benefits which comprehensively planned new settlements can provide which
would help local authorities to play a leadership role in the provision of new
settlements such as garden cities.

10. Specific policy issues
10.1 The NPPF sets out a number of specific policy issues including:
1. Business and economic development
2. Transport
3. Communications infrastructure
4. Minerals
5. Housing
6. Design
7. Sustainable communities
8. Green Belt
9. Climate change, flooding and coastal change
10. Natural environment
11. Historic environment

10.2 Each one of these policy areas is described in two to three pages of text and the TCPA welcomes aspects of the specific contents on design and climate change. While the Impact Assessment states that overall there has been no major policy changes, the brevity of the Framework has removed very important guidance on methods and approaches. Housing and climate change are perhaps the most obvious examples of where the NPPF provides substantially less or no indication of how data should be handled, or in relation to climate change, where it can be sourced – the TCPA is particularly concerned about this in relation to climate change adaptation. This lack of clarity may lead to costs and delay by generating uncertainty as to what constitutes the right evidence base for Strategic Housing Market Assessments (SHMA), climate adaptation or what figure to apply for carbon reduction.

The TCPA wants to ensure that changes made to planning policy will lead to ‘faster’ and more ‘transparent’ decision making and therefore recommend that for key priorities, such as housing assessment and climate change mitigation, Government provides guidance on methods, approaches and sources of data.

10.3 The issue of viability and practicability are common themes in all the specific policy sections. Viability is established as a vital aspect of plan-making11 and development management but is also invoked in relation to requirements for sustainable transport, social housing and other environmental standards. For example, minimum thresholds for the amount of social housing required from a developer have been removed on the grounds that this decreases the viability of sites in low demand areas and is therefore an ‘obstacle’ to development.12

10.4 The issue of viability risks being overemphasised and may undermine local
authorities ability to ensure high standards. The UK development model does not include ‘open book’ accounting which would allow for a transparent judgment to be reached on viability. While there are tools available to calculate viability these do not remove the need for a negotiated settlement between developers and local authorities. The TCPA wants to ensure that local authorities negotiate reasonably but from a position of strength. The overwhelming stress on viability in the NPPF undermines the ability of local authorities to defend high quality development.

11 . Specific policy concerns
11.1 In addition to the general concerns established above, there are further detailed policy questions:
1. Housing – where will the proper inputs to Strategic Housing Market
Assessments (SHMA) be defined? What is the rationale and evidence base for
the added 20% housing target for ‘competition’? How will this figure work out in
areas of constraint or low demand?
The TCPA recommends that Government works with the sector to ensure
appropriate guidance is provided on the preparation of SHMA’s
2. Town centre first – what will be the effect of the removal of office development
from the town centre first policy on sustainable transport, particularly in the
context of the removal of car parking standards?
The TCPA recommends that the Government retains the town centre first policy
as well as car parking standards to ensure that our town and city centres
across the nation prosper and we get the behaviour shift towards more
sustainable modes of transport.
3. Climate change, green infrastructure and building standards – why is there
no articulation of the role of green infrastructure and no mention of a strategic
policy on green infrastructure which is mentioned in the Impact Assessment and
the Natural Environment White Paper? We are keen to understand why the
NPPF does not reference the Code for Sustainable Homes when it discusses
‘national standards’ for the sustainability and performance of buildings.
The TCPA recommends a greater recognition of the importance of climate
change and spatial planning, and in particular of the multiple benefits of green
infrastructure and quality building standards.
3. Climate change, green infrastructure and building standards – why is there
no articulation of the role of green infrastructure and no mention of a strategic
policy on green infrastructure which is mentioned in the Impact Assessment and
the Natural Environment White Paper? We are keen to understand why the
NPPF does not reference the Code for Sustainable Homes when it discusses
‘national standards’ for the sustainability and performance of buildings.
The TCPA recommends a greater recognition of the importance of climate
change and spatial planning, and in particular of the multiple benefits of green
infrastructure and quality building standards.
3. Climate change, green infrastructure and building standards – why is there
no articulation of the role of green infrastructure and no mention of a strategic
policy on green infrastructure which is mentioned in the Impact Assessment and
the Natural Environment White Paper? We are keen to understand why the
NPPF does not reference the Code for Sustainable Homes when it discusses
‘national standards’ for the sustainability and performance of buildings.
The TCPA recommends a greater recognition of the importance of climate
change and spatial planning, and in particular of the multiple benefits of green
infrastructure and quality building standards.
12. Workability
12.1 The Impact Assessment document which accompanies the NPPF states that the
policy will:
• Increase certainty and clarity
• Hand power back to people
• Be more user friendly and accessible13
12.2 The TCPA wants to help ensure that the NPPF meets these aspirations. At present,the TCPA is concerned that the draft document potentially introduces legal inaccuraciesand uncertainties which could result in challenge and delay. It also contains policy inconsistencies and limits neighbourhood planning by reducing the policy scope of such plans and by imposing centralised policy approaches.

13. Legal issues
13.1 Any change in policy creates unforeseen legal issues. However, the TCPA wants to highlight to the Government that some of the legal problems which may arise from the NPPF can be avoided rather than resulting in challenge and delay. For example:
• The application of the presumption where plans are ‘absent, silent, indeterminate
or out of date’14 is likely to result in major legal challenge and argument to define what these terms mean. For example, it will always be possible to argue that a plan is ‘indeterminate’ because it contains a range of policy which may both
support approval and justify refusal. This is a matter of judgment and the courts
will have to test each of these words carefully. (There is already case law on the
‘out of date’ issue). Ironically, the use of the word indeterminate could risk
encouraging more complex policy on the ground as local authorities seek to write
policy for every eventuality.
• The overall planning reform process would have benefited from clear transitional
arrangements, but there is a particular problem in relation to the final publication
of the NPPF. At that point all existing adopted LDFs – and those post examination
or well advanced (at least 50% of plans in England by April 2012) -will be
technically out of date. As a result, the presumption in favour of sustainable
development will apply to all developments in their area so that the contents of
the NPPF becomes the de facto policy framework (see Para 25 of the draft
NPPF). Partly for the legal reasons described above and partly for obvious
confusion this causes there is real risk of major delay (as the result of appeals
and challenges) and even stasis in the local planning process. This position will
remain until Local Plans are updated to reflect the new NPPF – a process which
will take perhaps 18 months to two years. It is not yet completely clear how the
Government will deal with this critical issue. Paragraph 25 of the draft NPPF
makes clear that ‘it will be open to local planning authorities to apply for a
certificate of conformity with the framework’. This optional approach appears to
imply that DCLG will offer to test draft and adopted LDF’s to see if they conform
with the NPPF. This raises a whole series of yet more questions about how
precisely an LDF, based on a revoked Regional Strategy (RS) or the existing
PPS 1, could ever meet a test of conformity with the new NPPF, particularly in
relation to the presumption in favour of sustainable development. All of these
issues provide a number of grounds for both appeal and for legal challenge.
• Para 51 of the NPPF is legally incorrect. Neighbourhood Development Plans
(NDPs) cannot outrank LDF’s in law because they both form part of the
development plan and have equal legal status in the 2004 Act. [This is mistaken, its a policy weighting of different parts of the development plan not a legal one, no different than previous policy weightings on written statements and proposals maps and structure plans and more recent local plans]
• Para 62 and 63 of the draft NPPF gives a legally incorrect definition of how
development management works in law.

The legal status of the NPPF
The NPPF is a statement of Government policy and unlike National Policy Statements (NPS), it has no definitive legal weight set out in primary legislation. The Consultation document makes clear that the NPPF will have the same status as PPSs set out in the 2004 Act. Section 19 of the Act makes clear that authorities should have ‘regard to’ ‘guidance’ issued by the Secretary of State. In practice the precise status of the NPPF is likely to be resolved by case law which will need to decide in each instance the relative weight to be given to a statutory development plan versus a non-statutory guidance document. This is not to say the NPPF is not a powerful statement of policy but simply to highlight the intrinsic complexity of enshrining key approaches in guidance rather than law.

14. Policy Inconsistencies
• There is a significant difference in tone of the definition of the presumption in
favour of sustainable development in Paragraph 14 with that in Paragraph 20.
Paragraph 20 is based on the definition issued by DCLG in July and Paragraph
14 is significantly more deregulatory in tone by stating that Local Planning
Authorities (LPAs) should ‘…approve all individual proposals wherever possible’.
These subtle but important differences will be the source of a good deal of
debate at appeal.
• There are large policy conflicts between the sections on climate change which
talk about ‘radical’ reductions in carbon emissions and the sections on viability
(see Para 39) which stress the need to not impose undue burdens on business.
How are decision makers to resolve these conflicts?

The TCPA is concerned that these issues will lead to uncertainty, appeals and
legal challenge with consequent delay to the process. The TCPA believe it
would be possible to reduce the scope of this delay by setting out a clear
transition plan and stating explicitly what key concepts such as ‘indeterminate’
mean in detail.

Further reading:
• The Localism Bill and the Future of Planning, TCPA briefing for the House of
Lords, May 2011:
• The Future of Planning Report, TCPA report, June 2010:
• Policy analysis of housing and planning reform, TCPA report supported by JRF,
March 2011:

Click to access tcpa_jrfpolicyanalysis_final_report.pdf

• Re-imagining Garden Cities for the 21st Century, TCPA report supported by Land
Securities, July 2011:

Click to access reimagining_garden_cities_final.pdf

Town and Country Planning Association
9 September 2011

1 Securing the Future, Delivery the UK’s Sustainable Development Strategy (HM Government, Dept forFood, Environment and Rural Affairs, 2005)
2 Such advice would not have the weight of formal government policy and its unclear who would prepare it.
It is likely that the Circular which simply interprets legal requirements will be retained.
3 House of Commons, OPDM: Housing, Planning, Local Government and the Regions Committee, Planning
Competitiveness and Productivity, Fourth Report of 2002-03 session, Vol. 1
4 The document makes a number of references to the importance ‘sustainable economic growth’. It isimportant to be clear that this term has no relationship to the notion of sustainable development in policy or the wider literature on sustainable development.
5 See page 4 of the NPPF Impact assessment document.
6 See Para 20 of the NPPF
7 See Para 150 which would also impact more widely on the ability of local authorities to require innovative policies on carbon reduction and sustainable construction. TCPA welcomes the use of national standards as a policy floor but would not wish to rule out local innovation above those standards.
8 The TCPA recognises the importance and limitations of price signals in planning decision making. For example the claim in the impact assessment that greater land allocation in high demand areas will lower rents and prices is unsafe. The complexity of land economy and special nature of land and housing as commodity means that estimating how much additional land allocation would reduce prices has never been adequately determined.
9 See Para 27 onwards
10 Theatre Trust Press Release 1st August 2011: http://www.theatrestrust.org.uk/news/press-releases
11 See Para 39-41
12 The NPPF is silent on this issue but the policy is articulated on page 62 of the Impact Assessment
document. The potential risks are not adequately identified and in particular the weaker negotiating position
this measure creates for all local authorities but particular those in low demand areas.
13 See page 3 of the NPPF Impact assessment document

Rescue – British Archaeological Trust #NPPF Response


RESCUE believes that the current planning system is confusing, cumbersome and in places, contradictory. In principle, we welcome the Government’s stated intention to simplify the system and to make it more accessible to both developers and the general public alike.

However, RESCUE does not believe that the National Planning Policy Framework (NPFF), as drafted, provides a suitable alternative. In redrafting and slimming down the existing documentation, the Government has created a proposed planning system which offers very little regulation to protect the historic or natural environment from destruction or damage by development. The automatic presumption in favour of sustainable development appears to lay the foundations for what could be an unregulated development free-for-all, in which both local authority planning departments and local communities will have little or no reasonable capacity to challenge inappropriate or undesirable construction projects. RESCUE would prefer to see a balanced system within which proposals can be judged on their individual merits, taking into account their potential impact on the environment as a whole.

RESCUE also does not believe that the draft NPPF provides the same level of protection for the Historic Environment that is currently provided by PPS5. In this respect, the NPPF fails the Government’s own aims, as the Government has previously avowed that it intends no dilution of current protection regimes to ensue from this revision of planning policy.

Full Response here

Telegraph #NPPF Comment – Ministers Still need to listen on planning reforms


With the formal consultation period on the Draft National Planning Policy Framework closing next Monday, it is not too late for Daily Telegraph readers to make their views known to the Government. Our mailbag has shown that few issues in recent years have touched quite such a raw nerve and it is easy to see why. The restrictions on rural development enshrined in the Town and Country Planning Act of 1947 have served the country well. The Government’s desire to replace them with an overarching “presumption in favour of sustainable development” threatens to become a charter for developers to ride roughshod over local opinion, to the detriment of our matchless countryside.

The Coalition has hardly covered itself with glory on this issue. The policy document was slipped out after the Commons had risen for the long summer recess: one might almost suspect that ministers were trying to avoid a proper debate. When the protests did start – from, among many others, the National Trust and the Council for the Protection of Rural England – ministers who should have know better reacted outrageously, with talk of a “choreographed smear campaign by Left-wingers” and accusations that objectors were being “semi-hysterical”. This was not only offensive, it was counter-productive. Following the intervention of David Cameron, the atmospherics have, thankfully, changed. Dame Fiona Reynolds, the Trust’s director general, said last weekend that “peace is breaking out all over”.

The outline of a sensible compromise is emerging. There is much in the new guidance that is worthwhile, notably the streamlining of the planning laws. However, the presumption in favour of sustainable development remains the sticking point. Ministers now appear prepared to balance the economic impact of development with the environmental impact. That would help allay fears of unfettered building while also allowing the Coalition to pursue its growth strategy. But there must also be a clear definition of what “sustainable” means; without that, the new guidance will turn into a bun-fight for lawyers. It also appears that the last government’s insistence on giving priority to brownfield development will be restored and that is a welcome step.

No one can sensibly oppose all development in the countryside; without new building, rural communities would slide into decline. As ever with the planning system, it is a question of balance. The draft guidance, and the bellicose language of ministers, created real concern that the balance would tip too far towards the developers. We trust it is now tipping back towards local communities.

Campaign Against Sprawl Final #NPPF Response

Finally submitted this evening.  Just a few minor changes in the last couple of days, including some new glossary definitions and a more thoroughgoing treatment of Green Infrastructure.

Campaign Against Sprawl
Final Response to the Draft National Planning Policy Framework


Please find enclosed our full response to the consultation.

This response has four components – each also available online:

The Questionnaire Response – this document following the letter.

The track changes of para. by para. comments

And our Alternative Draft of the Entire National Planning policy Framework.

Finally the detailed justification for our alternative draft.

The alternative draft is also supplied in its original desktop publishing form – including its numerous time saving automations (because of its size this is only supplied as a link and is not attached).

Many of our suggested  changes are whole new or rewritten sections so it is not convenient to put these wholesale in the track changes database – but they are flagged at appropriate points. We have tried to keep this aligned with the database but this is difficult. In the event of any conflict the alternative draft takes precedence.

Summary of our response

  • The document lacks a positive vision of planning, of place, of England.
  • It is not balanced; it represents landowner interests above all others, even above economic development and employment.
  • It effectively redefines sustainable development to equal property development – it will not promote sustainability, rather its converse.
  • It will only be usable by experts; many of its phrases have meanings in planning precedent dating back to previous ages of planning.  It undoes much of the progress of the last 25 years.  Its parts interact in complex ways which it is clear even the government has not yet worked through, but which are already causing delay and confusion.
  • It will lead to a ‘free–for-all’ because almost all plans will be rendered out of date overnight.  This will lead to appeal-led planning, with a risk of sprawl rather than properly designed and planned development.
  • As a nation we badly need more development, in the right place and well designed; but the NPPF will hinder this and the irony is it is already leading to a crude anti-development backlash.
  • There are ways of salvaging the situation.  We suggest new clauses to the final stages of the localism bill  which combined with significantly rewritten parts of the NPPF would lead to a proper definition of sustainability, a workable presumption in favour of sustainable development, a proper transition period, plan-led rather than appeal-led planning and a simpler, quicker system.  We would be willing to expand on these suggestions in further work.

Andrew Lainton

on Behalf of the Campaign Against Sprawl

18 Bailey House
Berber Parade Woolwich
SE18 4GD






Defra Launch Green Infrastructure Partnership

Defra – Different planet than DCLG

Communities will be helped to bring the countryside into the city thanks to the launch of a new scheme to generate more green space in England’s towns and cities, Environment Minister Richard Benyon announced today.

With free space in urban areas in short supply, the Green Infrastructure Partnership has been designed to help communities make more innovative use of existing grey infrastructure – such as creating rooftop gardens, small community gardens or living walls.

Environment Minister Richard Benyon said:

“Green spaces are not only important for our health and well-being; they also create places where people want to invest, generating new jobs and businesses.

“We’re used to thinking about drab, grey infrastructure – the roads, drains, power lines and other things on which we all depend. It is now time to place the same level of emphasise on our green infrastructure.

“Today’s Partnership launch will help local neighbourhoods to do just that – be it by planting over a dull grey wall or designing a garden in the sky on an unused roof.

“It will provide communities with the expertise they need to bring the countryside into the city and create places where people want to live and work.”

The benefits of green infrastructure are compelling – a recent study of over 350,000 people found that people who lived near to green space lived longer and health inequalities were significantly reduced.

The Natural Environment White Paper therefore committed to enhancing green infrastructure and improving communities’ health, quality of life and resilience to climate change.

As those who have already successfully created green areas are best placed to help others, the new Green Infrastructure Partnership will be made up of planning professionals, landscape architects and environmental interest groups alongside organisations such as Natural England, the Landscape Institute and the Environment Agency.

It will bring people together from across the country to address the issues they face. It will also produce useful materials to help those who are looking to create a green area in their local community.

The Partnership, which is being launched as part of the first White Paper on the Natural Environment in 20 years, will initially run for up to two years. Their general aims will be to:

  • look at the condition of green infrastructure across England and how it meets communities’ needs;
  • investigate the scope for improvements, and look at the barriers to green infrastructure in existing areas to meet future challenges such as climate change;
  • consider how local communities, planners and decision-makers can best be supported in designing and developing green infrastructure;
  • demonstrate the social, economic and environmental benefits that well designed green infrastructure can provide; and
  • help people to quantify the costs and benefits of investing in green infrastructure and make the case for new projects.

The first manifestation of the Green Infrastructure Partnership is the publication today of Local Green Infrastructure: Helping Communities make the most of their Landscape by the Landscape Institute.

Speaking about the publication, Jo Watkins, President of the Landscape Institute said:

“We want to inspire everyone to make changes in their neighbourhoods by thinking about what’s offered by the natural environment.  As our case studies show, natural green open space attracts businesses to invest in an area, adds value to property, provides an educational resource and brings together local communities.

“Harnessing nature and making better use of our limited supply of land can therefore promote sustainable economic development and open up new employment opportunities.”

Bob Neill, Minister Communities and Local Government said:

“Sustainable development must go hand in hand with protecting and making the best use of our valuable green spaces and rural corridors. The  Green Infrastructure Partnership will be a key player in helping to develop the full potential of England’s green infrastructure and demonstrating its social, economic and environmental benefits.”

Notes to editors

The Natural Environment White Paper contained a commitment to create a Green Infrastructure Partnership.
“The Government will establish a Green Infrastructure Partnership to support the development of green infrastructure in England. This will consider how green infrastructure can be enhanced to strengthen ecological networks and improve communities’ health, quality of life and resilience to climate change.”

A definition of ‘green infrastructure’ was outlined in the The Natural Environment White Paper  as – “a term used to refer to the living network of green spaces, water and other environmental features in both urban and rural areas. It is often used in an urban context to cover benefits provided by trees, parks, gardens, road verges, allotments, cemeteries, woodlands, rivers and wetlands. Green infrastructure is also relevant in a rural context, where it might refer to the use of farmland, woodland, wetlands or other natural features to provide services such as flood protection, carbon storage or water purification. Green infrastructure maintains critical ecological links between town and country.”

The Landscape Institute is the royal chartered body for landscape architects.  It is a professional organisation and educational charity working to protect, conserve and enhance the natural and built environment for the public benefit.  It accredits university courses and promotes professional development to ensure that landscape architects deliver the highest standards of practice.  It works with government to improve the planning, design and management of urban and rural landscape. Through its advocacy programmes and support to its members it champions landscape, and the landscape profession, in order to inspire great places where people want to live, work and visit. Visit www.Landscapeinstitute.org for more information or follow the Institute on twitter: @talklandscape

This Partnership does not affect the planning or re-designation of land – just provide local communities the support they need to create more green space in the area they live.

Further information on the Green Infrastructure Partnership can be found athttp://www.defra.gov.uk/environment/natural/green-infrastructure

The World isnt Flat – its Clustered

Richard Florida at the APTA AGM

“Place and community are coming to supplant the industrial economy as the key social and economic organizational unit,” he said. “The idea that place matters is paramount. We have to invest in transit and other things that make place.”

Florida noted that thriving mega-regions transcend geopolitical boundaries and concentrate creative capital in communities.

“The world isn’t flat, it’s clustered,” he said, refuting a popular theory of how globalization has changed the worldwide economy. “Old patterns are crumbling. Places that understand how to concentrate and cluster people will prosper.”

Florida elaborated, saying that the new economic system will be built not around the automobile, but instead around public transit, high-speed rail, and other forms of public transportation that help the creative class cluster. “The way we build our transportation systems is critical,” he stressed.

Florida explained that traffic and gridlock resulting from the suburbanization of the nation in the 20th century are responsible for hundreds of billions of hours of lost time and productivity. He cited studies associating long car commutes with lowered happiness levels, financial instability, illness, and obesity. The move now, he said, is away from the suburban model and toward cities and regions where residents can benefit from public transit hubs.

“We need better transportation systems, better rail systems, to knit areas together,” he said. “How we commute matters.”