Planning matters

• Revised NPPF (2023)
• Consultation Response

1. LPAs with a plan adopted in past 5 years (in most cases) don’t need to demonstrate a 5YHLS (some caveats apply to the determination of existing applications);
   
   
2. LPAs at the Reg.18 or Reg.19 stage (with caveats out the contents of relevant material) or with plans submitted for examination only need to demonstrate a 4-year supply;
   
   
3. 5% and 10% buffers are gone but 20% buffers remain;
   
   
4. Oversupply will count towards 5YHLS in the future but how this works in to be determined;
   
   
5. The eligibility criteria for Annual Position Statements is now wider; and
   
   
6. Paragraph 14 has been beefed up to protect areas with made neighbourhood plans.
   
   

• LPAs with a plan submitted for examination; or,
• LPAs with a Reg.18 or19 plan that includes both a policy map and proposed allocations to meet a requirement.

• Buffers: 5% and 10% buffers are gone. But 20% buffers remain. The 20% buffer only applies where an LPA is not protected by paragraph 76 and scores below 85% in the latest HDT (paragraph 79);
  
  
• Oversupply: One for the future, but the NPPF makes it clear that past ‘oversupply’ will be counted in an LPAs assessment of whether it can demonstrate a 5YHLS. However, how it is counted is unknown. Details of this will be published in future changes to Planning Practice Guidance (which do not accompany the NPPF at this time) (paragraph 77);
  
  
• Monitoring supply: While some LPAs will not need to identify and annually update a 5YHLS, all LPAs should set out their deliverable land supply against an adopted housing requirement (paragraph 75); although critically, there is no incentive to do so or punishment for failing to do so. Notwithstanding, this means developers should still be able to calculate an LPAs 5YHLS supply – even if said LPA benefits from paragraph 76 – and demonstrate that there isn’t sufficient supply coming forward; adding weight to a housing case.
  
  
• Annual position statements: Paragraph 78 now confirms that any LPA not covered by the provisions of Paragraph 76 can now submit an Annual Position Statement (‘APS’) to ‘confirm’ (i.e. fix) a 5YHLS. Under the previous NPPF, the eligibility criteria to prepare an APS greatly limited their use so this is a sensible change; and
  
  
• Neighbourhood plan protections: The protections afforded by Paragraph 14 to areas with neighbourhood plans have been made stronger. It now applies to neighbourhood plans for five-years after being made (previously being two years).
  
  

Incentivising plan making:

• The protections afforded by paragraph 76 place a much greater emphasis on plans being consistently made and examined every five-years. This proposal – while risky (as we will come on to) – is far better than tying the benefits of paragraph 76 to having an up-to-date requirement (as was previously proposed). The former proposals were far too open to abuse while the new approach ties in a third-party examination of the supply.
  
  
• The four-year transitional arrangement might also help some LPAs bridge the gap to allow adoption an up-to-date plan and in doing so protect them against speculative development (albeit that it might also hinder some as set out above). While a plan-making incentive this measure will have some negative impact on housing supply in the shorter term, but it may yield longer term supply benefits (assuming new plans actually plan for sufficient numbers of homes – a big ‘if’ in the context of other changes to the NPPF).
  
  

The risky bit: lagging indicators

• Once plans are adopted and paragraph 76 applies, the HDT will be the only way to tell if they are actually delivering as intended. The HDT is a lagging indicator and shortfalls will take years to show up in it. At the same time, there is also no real incentive for LPAs protected by paragraph 76 to monitor supply annually to enable them to respond ahead of time to any shortfalls in deliverable supply.
  
  
• This all inbuilds risk. The lag of the HDT combined with the long lead-in times to prepare applications in response to a failed HDT (<75%), get said application submitted and approved, and then build out that permission will mean shortfalls might not be addressed for a significant period of time.
  
  
• Looking at this ‘glass half empty’, an LPA protected by paragraph 76 may coast for five-years and then be left with a considerable problem once it comes to review its plan if they are not monitoring effectively post adoption. This will be at a point where it’s too late to bring forward supply given known lead-in times.
  
  

Examining and preparing plans:

• In this context, presumably local plan inspectors will need to examine a plans deliverable supply more intently knowing the supply might not be challengeable for some years to come and will really want to be sure it will actually be delivered.
  
  
• Furthermore – and being quite ‘glass half full’ here – LPAs might be incentivised by the changes to paragraph 76 to take the tough choices on future supply (i.e. years 6-10 and beyond) now to help themselves in future plan reviews. If an LPA allocates sufficient supply in these periods or tees up work through policy to enable the identification of much longer-term supply (i.e. Garden Communities), then plan reviews should be a simple affair.
  
  
• One would hope that if you really focus on years 6-10 and beyond, the five-year supply will eventually take care of itself at examination next time around.