Posted: 20/12/2024
The government has certainly been keeping housing teams busy in the run up to Christmas. Its new National Planning Policy Framework (NPPF) has now been published, last updated a year ago. The NPPF is a material consideration in planning decisions and plan making. As expected, there is much more emphasis on bringing forward development as the government stands by its ambitious house-building targets.
In the last few days, we have also witnessed a working paper on modernising planning committees, in an attempt to streamline and inject efficiency and transparency into the decision making process, a devolution white paper, the Clean Power 2030 Action Plan, new guidance on appeals from the Planning Inspectorate (PINS) including the use of AI, the Planning and Infrastructure Bill, and revisions to the National Planning Policy Guidance (NPPG), to name a few.
Following an initial read, this article sets out some of the major points of difference between the December 2023 NPPF and the revised version issued on 12 December.
Generally, and as expected, there is much more emphasis on delivering housing, rowing back the last NPPF’s effective dilution of the tilted balance and when that was to be applied. Local planning authorities (LPAs) will need to make sure that their local plans are up to date.
There is now an LPA requirement to identify five years (rather than four) of housing land supply, with a buffer.
The supply is based on need, so there is no change there. Paragraph 62 requires the housing need identified using the NPPG set standard methodology to be met. This is a requirement, not a target or an advisory starting point with a requirement to meet ‘as much as possible’, as the December 2023 version had provided. Failure to meet the standard requirement in the five year housing land supply brings in the paragraph 11(d) ‘titled balance’: to approve up to date development plan compliant proposals and those where the development plan policies are out of date (those that identify less than five years of supply with a buffer, or where the delivery of housing is substantially below the housing requirement over the previous three years, which means less than 75% – this is new; previously, it was just below 75% delivery).
The buffer(s) is set out in paragraph 78(a) to (c) as 5% in all cases, 20% if there has been significant under delivery in the previous three years, and, from 1 July 2026 (for the purposes of decision making only), 20% where:
This is likely to catch many LPAs that have based housing need on the previous requirement to only use the standard methodology as an advisory.
Of particular note is the change in paragraph 11(d)(i), that for NPPF policies that protect areas or assets of particular importance (noting the new definition of ‘National Landscapes’ replacing ‘Areas of Outstanding Natural Beauty’), to override the 11(d) presumption of grant, they must provide a ‘strong’, rather than ‘clear’, reason for refusing the development. This is a higher bar and one that is likely to be subject to much argument.
There is an emphasis on social rent and an express requirement for policies to specify tenure types and percentages, with off-site provision only if it is robustly justified (para 64).
Build to rent schemes and specialist accommodation (student and accommodation for the elderly) have been taken out of the exceptions to the affordable housing policy requirements. An NPPF-led policy requirement to provide affordable housing on those developments is something we have already seen with some LPAs.
Regarding ‘First Homes’: there is no NPPF policy requirement for 25%, albeit there is no bar on LPAs requiring them. This would be in addition to any affordable housing, noting here the new enhanced definition of social rent and the removal of starter homes.
There are significant updates to the treatment of green belt land, in particular:
(a) to check the unrestricted sprawl of large built up areas;
(b) to prevent neighbouring towns merging into one another;
(d) to preserve the setting and special character of historic towns.’
(Interestingly, purpose (c), ‘safeguarding the countryside from encroachment’, is not included here, as according to the government’s consultation response, this would introduce too much ambiguity in assessment.)
(a) affordable housing which reflects development plan policies: where no such policies are currently in place, a default provision whereby affordable housing required to satisfy the golden rules is 15% above the highest existing affordable housing requirement that would otherwise apply, subject to a 50% cap, with some exceptions, or in the absence of an existing affordable housing policy 50% as a default but not, as the consultation draft stated a requirement for all grey belt housing development to include 50% affordable housing or be subject to a viability review. In circumstances where an authority has an existing policy which would apply a greater affordable housing requirement than 50%, then that can also apply;
(b) necessary improvements to local or national infrastructure;
(c) provision of new, or improvements to existing, green spaces that are accessible to the public, specifying that new residents should be able to access good quality green spaces within a short walk from their home.
For a more comprehensive summary of the green belt changes, click here.
‘Maintaining effective cooperation’ – there is more emphasis and requirements on cross boundary LPAs working closely together to achieve sustainable development targets with statements of common ground, with a stronger emphasis on strategic policy planning.
The duty to cooperate with policies and local plans that share common ground should provide more transparency and certainty for house builders and developers, who will then be able to deploy informed decision making for their developments.
Paragraph 24 emphasises ‘effective strategic planning’ across local planning authority boundaries to address housing needs and sustainable growth targets. Councils are used to working together in light of ongoing budget cuts, and collaboration between legal and planning departments is key to delivering this policy requirement.
Paragraph 27 provides further detail on the ‘consistent approach’ following ongoing collaboration between councils, with a reminder to follow the presumption in favour of sustainable development as at paragraph 11b.
‘a) a consistent approach is taken to planning the delivery of major infrastructure, such as major transport services/projects, utilities, waste, minerals, environmental improvement and resilience; and strategic health, education and other social infrastructure (such as hospitals, neighbourhood health facilities, universities, schools, major sports facilities and criminal justice accommodation);
b) unmet development needs from neighbouring areas are provided for in accordance with paragraph 11b; and
c) any allocation or designation which cuts across the boundary of plan areas, or has significant implication for neighbouring areas, is appropriately managed by all relevant authorities.’
The paragraph requires strategic policy making and statements of common ground in addressing cross boundary issues, and interestingly faces up to the issue of where the local plans of adjoining LPAs are at different stages or age: strategic policy makers and inspectors should come together to make an informed decision.
There is some flexibility with the transition period for local authorities to get their plans in order and in line with the new NPPF by 12 March 2025 (the key date). Regulation 19 plans and Part 2 plans are covered under exception and run under the old NPPF.
Details on the plans that fall under the exceptions to the key date, and can still run under the previous NPPF, can be found under annex 1 paragraph 134 (a) to (e).
Local authorities that do not fall under any of the exceptions should be mindful of the standard method and examine their plans closely to future proof their plans. Following the collaborative approach and duty to cooperate will be key in demonstrating delivery.
Paragraph 232: weight should be given to policies that are consistent with the current NPPF and local plans that can demonstrate a five year housing land supply (see earlier). The standard method is the calculation to use. Guidance on plan making was released by the Ministry of Housing, Communities and Local Government on 12 December 2024 and can be found here.
Paragraph 234: regarding implementation for the purpose of plan making, local authorities will have a (short) three month transition period until 12 March 2025 to implement under the new NPPF.
The need for buildings to be ‘beautiful’ is removed. This is welcomed by many as the notion of beauty is so subjective. There has been concern however that this might favour quantity over quality of design when under pressure to meet housing targets. ‘Health’ is, however, given a greater focus. In complying with the requirement for policies and decisions to aim to achieve ‘healthy, inclusive and safe places’ which, inter alia, enable and support healthy lives, the revisions specify that this is to be achieved through both ‘promoting good health and preventing ill-health’, and reducing ‘health inequalities between the most and least deprived communities’ (paragraph 96).
A new paragraph 97 states that authorities should refuse applications for hot food takeaways and fast food outlets within walking distance of schools and other places where young people congregate, unless in a designated town centre, or in locations where there is evidence that a concentration of such uses has adverse impact on local health, pollution or anti-social behaviour. ‘Should refuse’ is a very strong requirement bar that could cause problems to restaurant sector deals being done in a significant number of locations.
‘Walking distance’ is not defined and is likely to be subject to a significant dispute as local authorities need to grapple with such applications. It is also important to note that a number of traditional restaurants now also operate a takeaway service – whether or not a restaurant is operating as a takeaway is very much a matter of fact and degree. It is also important to note that not all hot food takeaways are for fast food or low-quality food, and this paragraph is likely to catch a significantly greater number of food outlets than is intended.
Note here the current issues with coffee shops and the difficulties there are with different LPA views on what use class these are, sui generis or E(b).
The NPPF is reinforced to state that development should pay particular regard to ‘facilitating development to meet the needs of modern economy, including by identifying suitable locations for uses such as laboratories, gigafactories, data centres, digital infrastructure, freight and logistics’. When putting forward proposals for economic development, there is a need to take account of the Invest 2035 Modern Industrial Strategy, which identifies priority sectors for growth and support such as advanced manufacturing, clean energy industries, creative industries, digital and technology businesses, financial services, life sciences and professional and business services, as well as relevant local policies (paragraph 86).
This article was co-written by Christina Odewale, associate in the commercial real estate team.
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