The National Trust’s Key #NPPF Requested Changes – How Might the Government Respond?

As you may know we have been going through the responses of the major national groups responding to the NPPF to find out what consensus their is and how it might be changed, which is why its been rather quiet on here the last week or two.  Though there is a small minority of groups who consider no changes should be made those that do want changes have asked for very similar ones in most cases.

We have also, since before the consultation ended, been developing an alternative draft of the NPPF that tries to forge consensus around the principles of Smart growth – more housing and employment development yes but in the right place and built truly sustainably.

Now having gone through the main national groups responses we can now see the scope for achieving resolution of this dispute.  The National Trust’s response is as much concerned with tone and the overall thrust of the government’s reforms but it does make a number of specific requests for changes.  Critically the Trust does not seek to question the need for more development, nor does it seek a ‘neighbourhood veto’ in the local plan process (one of the 10 ‘asks’).  On that basis are its specific concerns realistic?  After having gone through them in some detail I consider they are.  They are very similar to what many other groups have requested and in many cases are easily fixed.  In one or two cases the issues raised misunderstand the legal position or the extent of changes (or lack of them) from current national policy; but this is common to all of the major responses and the same criticism could be applied to a much greater extent to the original consultation draft NPPF.

In the majority of cases the issues the trust raises are already tackled by the alternative draft wording, including changes also requested by other groups and made.  Through this we have sought to show that both précis and positively can be achieved without the use of the  clumsy and legally vague language imposed by treasury officials.  In other cases we have highlighted specific changes to the alternative draft which may be able to meet their concerns.

Dealing with the specific changes requested by the Trust

Sustainable Development in the NPPF

The Trust’s concern was

the ‘presumption in favour of sustainable development,’ while attempting to set a positive framework, is actually unacceptably tilted towards one sector of sustainability so that the necessary balance of factors becomes distorted and unable to fully and properly deliver the principles in either Brundtland or the UK SDS.

The alternative draft has reference to both the Brundland definition and the 2005 SDS principles.   It sets out a simple definition of sustainable development based on the ‘three pillars,’ but stresses in addition environmental limits.  It sets out how the aims of the 2005 SDS help interep how these should be applied.  In particular it applies some of the latest thinking on sustainable development, particularly that reflected within the 2010 Natural Environmental White paper, of how these pillars should where possible should be integrated and biophysical systems restored rather than simply traded and harm mitigated.  This represents a positive and restorative vision of sustainable development – that if adopted – we would hope meets the NTs concerns

 The presumption in favour of sustainable development in the NPPF

The statement that

The National Trust would .. support the encouragement of a positive, plan-led system (whether or not a ‘presumption is actually necessary) so long as the aim of achieving genuinely sustainable development is equally clear.

Is welcomed.

A number of points are mentioned in the response which need to be tackled separately.  The alternative draft recasts the presumption in what is hoped is a more workable and balanced way.

Firstly the issue of the evidential burden.  The consultation draft is very unclear on this issue and the government has subsequently in its mythbuster document stated that ‘All proposals will need to demonstrate their sustainability’ . This is the position taken in the alternative draft with clear proposals as to how it can be done and simplified through applicants presenting a ‘single statement’ with the application.  Others can them argue differently, it is a level playing field on all sides.

The alternative draft removes some of the careless and blunt language in the consultation draft that drew so much concern whilst retaining the positive thrust that the Trust accepts.  Its position on the key decision tests when plans are out of date is based on that which applies under the 2008 Planning Act and indeed from caselaw to all cases, that assessment of cases should be based on the weighing of benefits and harm and where benefits outweigh harm a scheme should be approved.  The alternative draft also clarifies, as does the NPSs supporting the 2008 Act that harm and benefits need to be ‘significant’ to be material, and of course evidenced.  This adverb free formulation should be much less open to legal interpretation and uncertainty as it is based on current legal principles.

Under current law where a plan has nothing to say on a matter or pulls in opposite directions so there is no clear steer then applications have to be decided on their merits having regard to all material considerations including national policy.  The alternative draft adopts the same principles using them to provide greater clarity on what ‘silent’ and ‘indeterminate’ actually mean on the basis of current caselaw, and what happens when this is the case. It clarifies that a plan will only be indeterminate where there is no clear steer from the plan as a whole.

In terms of when plans are ‘out of date’ the courts have determined that the age of the plan is not a material consideration, what matters is whether or not it is still relevant.  This is because a brand new plan can be rendered no longer relevant by events the next day such as new national policy, and also very longstanding policy, such as a national park designation, might be more relevant than ever.  Hence it uses the term ‘no longer relevant’ instead which may be triggered in certain circumstances when a plan is out of date.

It is understood though that the Trust’s key concern is that of a default or almost automatic yes when these ‘planning in default’ considerations are triggered.  The Alternative draft contains a number of key safeguards including the introduction of tests of balance and a ‘good planning test’ when this is the case. This would prevent for example a large housing site going on a poor site when a plan no longer has a 5 year supply, but rather the most sustainable site.

Secondly the issue of ‘significant weight’ being given to the need to support economic growth.  This was clumsy language.  The alternative draft uses the ‘sustainable economic growth’ definition from PPS4 throughout. This means economic development would have to be sustainable by definition.  At a time of economic recession it is considered reasonable that significant weight should be given to achieving sustainable development and sustainable economic growth, which because of their definitions would need to be comprised on development that takes a balanced and integrated approach to the three pillars.

Edit 2-30 and add addition text at start as follows

‘The decision maker may decide to give different weight to various considerations. Where this is the case, the reasons for doing so should be explicit and the consequences considered. Harmful environmental, social and economic impacts should be avoided, mitigated, or compensated for, including through use of planning conditions, obligations …’

The alternative draft cross refers to the biodiversity chapter which contains a rigorous listing of all of those areas protected by European law and national policy, and hence where the presumption does not apply.

Plan Making

The Trust makes a number of specific points

The alternative draft requires evidence to be robust.

The alternative draft allows for design based SPD.

The alternative draft refers to (3-11 viii) ‘contain a clear strategy for the enhancement of the natural, built and historic environment of the area.’

There is little risk of the phrase ‘environment’ being interpreted narrowly as the following list of evidence base requirements refers specifically to the historic environment.

The alternative draft contains a different formulation of the viability sections which overcomes this concern.

On neighbourhood planning there is some confusion here in that neighbourhood plans will form part of the development plan so there is no conflict with section 38(6). There were a number of aspects of this section which remained unclear however which are tackled in the alternative draft. For example it clarifies that more development than the local plan allows for is acceptable only where this complies with policies regarding infrastructure or restraint in the local plan – otherwise there would be a breach of the conformity test. 

Decision Taking

The trust raises concerns about the use of language in this section such as ‘growth’ and ‘enhanced levels of development’ rather than ‘sustainable development’.

The alternative draft has wording of this section which might be more acceptable.

There appears to be a misunderstanding regarding neighbourhood development orders, an examiner can ask for whatever is necessary to make a decision on a neighbourhood plan/neighbourhood development order.

Business and Economic Development

Sustainable economic growth is a term from existing national planning policy PPS4, although the NPPF does not define it.  The alternative draft retains the definition.  This is clear that it means growth that is sustainable.

Town Centres

The alternative draft includes offices within town centre first but allows local plans the discretion of designating other locations with good public transport as suitable for office development.

Transport

The Trust is concerned that

this section is very largely focused on promoting short-term development rather than supporting good sustainable transport solutions.

The alternative draft contains a completely redrafted transport section.

Minerals

11-1 ‘replace’ use with ‘extraction’

The alternative draft cross refers to the strict test on designated landscapes which is the same as that in PPS7 and MPS1.

Other NPPF policies on landscapes and biodiversity apply.  Part of the concern may lie with there being no general policy on landscape protection in the NPPF.  This is corrected in the alternative draft.

 Housing

The Trust state

While we agree that there is a need to increase housing supply, the housing section in general places too great an emphasis on quantity and increasing supply, and insufficient emphasis on quality and sustainability

They then go on to raise a number of specific concerns including over the ‘+20% rule’.

NPPF para 109 is poorly drafted but our understanding from DCLG is that the 20% does not add to the amount of land that needs to be allocated, rather it is a frontloading of the release of land from that allocation.  A clearer formulation of this principle is suggested in the alternative draft.

The alternative draft contains a clear Brownfield first policy.  It also retains a rural exceptions sites policy but allows local plans at their discretion to allow an element of affordable housing.

The alternative draft contains a default threshold in case there is no up to date local plan threshold.  They are free to vary that on the basis of the evidence.

Design

The National Trust welcomes the Government’s support for high quality and inclusive design, however we are concerned that the way the wording in PPS1 has been shortened will lead to a weakening in aesthetic control. At NPPF 118 the instruction not to impose “unsubstantiated requirements to conform to certain development forms or styles” is open to interpretation, especially as it is not balanced with the affirmation in PPS1 that it is proper to promote and reinforce local distinctiveness. Sensitivity to character and local distinctiveness are key principles that should be recognised.

The alternative draft contains this alternative formulation – para 4-7

Where there is a strong local vernacular or a clear historical or architectural character contributing to a sense of place & local distinctiveness then plans and decisions should reflect this, including in neighbourhood plans and in design guidance on matters such as use of traditional materials and methods, however planning should always allow for innovation and creative design solutions that are sensitive to and add to local character.

Green Belt

On minerals development it is a slight tightening of policy not a relaxation as PPG2 para 3.11 states that ‘Mineral extraction need not be inappropriate development’ now it would be subject to the ‘provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt’ provisio.  Following restoration they may certainly contribute to green belt objectives – for example improving nature conservation, as areas such as the Colne Valley and Lea Valley show.

The test for engineering operations is exactly the same as in PPG2 para 3.12 – in fact it is a slight tightening of policy as it excludes ‘other operations’.

Clarification is proposed for park and ride. The change proposed by the NT would actually be weaker than current PPG2 as there would no longer be a need to demonstrate a Green Belt location or to pass the openness test.

Climate Change

The alternative draft includes reference to carbon sequestration in the objectives.

The alternative draft includes string reference to river catchment management.

The alternative draft includes a chapter on the coast which reflects most of the suggested amendments

13-4 insert

In the coastal zone all development should protect the character special qualities and features of the coast.  For land which is undeveloped, only development requiring a coastal location will be acceptable.  Development requiring a coastal location includes:…

This formulation is preferred as it applies to the whole coast not just coastal change management areas.

13-7

Plans should identify as a Coastal Change Management Area, through use of shoreline management plans and other evidence, any area likely to be affected by physical changes to the coast, such as from climate change or erosion.

Natural and Local Environment

The objectives of PPS1 iv) is adapted and repeated in the countryside chapter of the alternative draft.

1-23 v add at start

Planning policies should seek to protect and enhance the quality, character and amenity value of the countryside and urban areas as a whole.

Great weight is the highest level of weight, as in PPG2 for Green Belts.

The alternative draft correctly states the legal tests re National Parks and AONB.

On the best and most versatile agricultural land the wording from PPS7 is used, although it is considered important to add reference to the local plans strategy

Historic Environment

[The Trust is] genuinely concerned to note that overall protection for the historic environment is weakened in the NPPF

The alternative draft retains the presumption in favour of the preservation of heritage assets, as well as policy on harm that is less than substantial harm.    It also includes a number of changes requested by English Heritage and other Heritage Groups.

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