Consultation on “Levelling-up and Regeneration Bill: reforms to national planning policy” began on 22 December and runs for just over two months until Thursday 2nd March 2023.
The consultation:
-
Sets out NPPF amendments intended to be made quickly
-
Discusses the potential scope of a future NPPF consultation, to be carried out alongside a consultation on the first National Development Management policies
-
Proposes other policies and legislation that would be enabled by Royal Assent of the Levelling Up and Regeneration Bill
-
Includes policy and legislation related to other primary legislation and topics
This blog explains the scope of the consultation, provides a speedy overview of the proposed changes to the text of the NPPF and looks at the evolution of the concepts of National Development Management Policies and seeking to monitor and manage build out rates.
Proposed NPPF Revisions and Wider Policy Consultations
An NPPF “prospectus” was long anticipated and more recently reference was made to a revised NPPF. This consultation is both; it includes draft revised text and a proposed direction of travel for national policy flowing from the Levelling Up and Regeneration Bill’s anticipated Royal Assent in the Spring.
It seems likely that the consultation that has emerged did so following backbencher pressure on the Government to amend housing policy, to promote onshore wind development and to give additional policy protection to agricultural land used for food production.
But in addition to draft text on these matters are longer awaited proposals: the consultation “signals areas that we expect to consider in the context of a wider review of the Framework to follow Royal Assent of the Bill. The government will consult on the detail of these wider changes next year, reflecting responses to this consultation”.
The latest proposals are to be read alongside the
policy paper which accompanied the introduction of the Levelling Up and Regeneration Bill, demonstrating that this consultation presents limited evolution of those May 2022 proposals - which broadly remain current.
The national policy review coming next year will be far wider in its scope and will pick up various changes to legislation and national policy over the last few years, including use class E and First Homes, for example. It will also propose how to separate the refocused plan making elements, which will become the “residual NPPF” from the decision making parts of the NPPF that will evolve into the some of the first National Development Management Policies (NDMPs).
Speedy NPPF revisions
The consultation’s focus is on speedy changes to the NPPF that are intended respond to November’s backbench rebellions
[1]. Subject to the consultation outcome, changes to the NPPF are to be published by Spring 2023, or perhaps during Spring 2023, given that the consultation ends on 2nd March.
The Government also intends to reset its purported course to deliver 300,000 homes a year by the mid-2020s and to secure more quality homes in the right places through the adoption of local plans.
To these ends, six of the eight bullets (below) that summarise the proposed amendments to the NPPF, relate solely to housing. One of the remaining two deals with food security and protection of farmland. And although it refers to planning decisions broadly, this proposed policy wording responds to
lobbying by MPs and the National Farming Union against
“solar, nature and housebuilding being considered more important while farmland and food security is the poor relation”. The remaining bullet also relates to energy.
In his blog
‘So Far As Possible’ – will the Housing Delivery Test lose its teeth?, Ed Clarke analyses the future of the housing delivery test in light of these new proposals. He notes
“The section on the Housing Delivery Test has been amongst the most contentious – and the key focus of pre-publication intra party politicking”.
The proposed immediate amendments to the NPPF, summarised by the Government are:
-
“make clear how housing figures should be derived and applied so that communities can respond to local circumstances;
-
address issues in the operation of the housing delivery and land supply tests;
-
tackle problems of slow build out;
-
encourage local planning authorities to support the role of community-led groups in delivering affordable housing on exception sites;
-
set clearer expectations around planning for older peoples’ housing;
-
promote more beautiful homes, including through gentle density;
-
make sure that food security considerations are factored into planning decisions that affect farm land;
-
and enable new methods for demonstrating local support for onshore wind development”.
No immediate changes to the standard method to calculating local housing need are proposed.
Annex 1 of the NPPF is to be updated to provide additional transitional arrangements.
The Government says the consultation “will allow us to swiftly deliver the government’s commitments to building enough of the right homes in the right places with the right infrastructure, ensuring the environment is protected and giving local people a greater say on where and where not to place new, beautiful development. They will also allow us to deliver cheaper, cleaner, more secure power in the places that communities want to see onshore wind”.
Throughout the document, changes that go beyond this are described as forming part of next year’s wider or fuller review of the NPPF.
Levelling Up and Regeneration Bill: consultation on future “wider changes”
More information on two of the Bill's key new development management related proposals is provided in the consultation: national development management policies and build out rates.
Role for National Development Management Policies
Where would NDMPs fit in?
National Development Management Policies (NDMPs) would be national policy with statutory weight to be attached to them – acting as ‘top trumps’ in effect.
Clause 86 of the Bill would amend Section 38 of PCPA 2004 to provide that for the purposes of any determination to be made under the planning Acts “the determination must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise”. It would also provide that “If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.”
The consultation includes a figure showing where NDMPs fit into in decision making:
Source: “Levelling-up and Regeneration Bill: reforms to national planning policy” (Figure 2)
As previously advised by the Government, NDMPs would be set out in a separate yet-to-be consulted upon document suite. The “residual” NPPF would focus on plan-making principles and requirements. The consultation explores the potential scope of NDMPs in a limited way, raising as many questions as answers.
NDMP principles and categories
Three guiding principles for drafting NDMPs are proposed:
-
“Covering only matters that have a direct bearing on the determination of planning applications;
-
Limited to key, nationally important issues commonly encountered in making decisions on planning applications across the country (or significant parts of the country); and
-
solely addressing planning issues, in other words that concern the development and use of land. National Development Management Policies would not address subjects which are regulated through other legislation, for example the building regulations or acts relating to public health, pollution, and employment; although we are minded to retain the scope for optional technical standards to be set locally through plans, where these remain appropriate, so that local planning authorities can go above certain minima set through building standards”.
It is proposed that the parts of the NPPF that apply to decision-making would be the starting point for creating NDMPs, with views invited on other “topics”.
Existing NPPF policies aimed at decision-making would be one category of NDMP; the Government suggests two others:
-
“Selective new additions to reflect new national priorities, for example net zero policies that it would be difficult to develop evidence to support at a district level, but which are nationally important.”
-
“Selective new additions to close ‘gaps’ where existing national policy is silent on planning considerations that regularly affect decision-making across the country (or significant parts of it).”
The Government asks “Do you agree that selective additions should be considered for proposals to complement existing national policies for guiding decisions?”
The consultation itself suggests just three “gaps”: carbon reduction in new developments, allotments and housing in town centres and built-up areas as additional potential topics to develop NDMPs. However, inclusion of allotments is questioned by the consultation itself: “This may not require an individual National Development Management Policy but, instead, might be incorporated into a wider policy on protection of green spaces”. And the document suggests that the carbon reduction policy might be a baseline with local planning authorities able to set further measures, rather than a standalone policy.
Would national policy from which local policies are to be derived be better placed in the plan-making NPPF rather than in NDMPs? Or is it better to ensure a national baseline via NDMPs while allowing some local tweaking, although the debate on local policy would negate some of the intentions of NDMPs, i.e. to speed plan-making and reduce policy related uncertainty?
The consultation asks separately:
Do you think that the government should bring forward proposals to update the Framework as part of next year’s wider review to place more emphasis on making sure that women, girls and other vulnerable groups feel safe in our public spaces, including for example policies on lighting/street lighting?
To my mind, such a policy topic is a good example of a potential NDMP? Does this consultation question infer that we will have another revised NPPF before NDMPs are in force? If the text of the next revision of the NPPF is to be published alongside consultation on draft NDMPs, this could be the case. Or it could just be an example of the future national policy split between the NDMP suite and the plan-making NPPF not yet being known.
NDMPs Influence
In drafting NDMPs the future status of National Planning Policy for Waste and Planning Policy for Traveller Sites, which sit alongside the NPPF, will be considered.
The Government’s aim is that “In developing National Development Management Policies, we will seek to support faster plan-making without undermining community control”.
In my view, the following is the key paragraph of the consultation on what a significant shift NDMPs would provide (my emphasis):
“They will provide greater assurance that important policy safeguards which apply nationally, or to significant parts of England (such as protections for areas at risk of flooding, policy on climate change, and policies to protect the Green Belt) will be upheld with statutory weight and applied quickly across the country, including when any changes are made; and […]”
Applied quickly across the country is a key driver for the introduction of NDMPs; potentially overnight, national policy could be changed and have full weight in the decision-making process. This would introduce a top down development management system with capability to be nimble and dynamic in devising development management policies, but as a consequence could create uncertainty, unless the scope of NDMPs and a requirement for genuine consultation is defined in law. The Government acknowledges that some NDMPs may require environmental assessment, which might slow down their publication somewhat.
Design Codes
Design Codes, once forming part of the development plan, will have the same weight as NDMPs, unless in conflict with them, and the proposed consultation on NDMPs is to include discussion on the new weight to be given to design codes.
Tracking build out rates
On housing, measures already included in the Bill seek to “incentivise the prompt build-out of permitted housing sites and to support local authorities to act against those who fail to meet these commitments”.
The use it or lose it provisions in the Bill as presented to Parliament are explained in this
Lichfields Planning Matters blog.
During the passage of the Bill, a new provision was added, requiring developers to provide local planning authorities with progress reports about the actual and projected delivery of new homes for each reporting period (annually until completion), on sites with residential planning permission.
The consultation document announced three policy measures to “strengthen” the legislative package and a separate consultation on a financial penalty against developers who are building out too slowly.
The national policy measures proposed are:
-
Publishing data on developers of sites over a certain size in cases where they fail to build out according to their commitments.
-
Requiring developers to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate (rate at which homes are sold or occupied).
-
Proposed delivery trajectory would be a material consideration in planning applications, such that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances.
According to the Government:
“These measures will improve transparency and public accountability over build out rates once permission is granted, empower local authorities to take account of build out considerations when making planning decisions, and give authorities stronger tools to address build out problems where they arise. We are seeking initial views, ahead of consultation as part of a fuller review of national planning policy next year”.
Further consultations on wider policy changes
Further consultations will follow this year, including significant proposed changes to the Framework itself, depending “on the implementation of the government’s proposals for wider changes to the planning system, including the LURB”. Those anticipated within the document include:
-
the first draft National Development Management Policies
-
NPPF refocused on plan-making policies
-
potential ways to improve developer accountability and, in particular, take account of past irresponsible behaviour in decision-making
-
introduction of a financial penalty against developers who build out “too slowly”
-
national policy on build out rates
-
permitted development rights and design codes
-
the design of the infrastructure levy
-
increase to planning fees
-
exploring how to do more through planning to measure and reduce emissions in the built environment, ahead of the wider NPPF review.
-
Neighbourhood Priorities Statements (a formal input to a local plan) and Street Votes (will be ‘supported’ by the wider review of the NPPF (if the outcome is as consulted upon) - might consultation on the legislation associated with these proposals take place too?)
-
review the implications on the standard method of new household projections data based on the 2021 Census, which is due to be published in 2024.
-
the details of the “alignment policy” that will replace the duty to cooperate
The future consultation on updating national policy – to NDMP or not NDMP
Overarching updates required
to national policy to be consulted on, are identified in an
“indicative and not exhaustive” list in the table at Chapter 12 of the consultation “
Chapter 12 - Wider changes to national planning policy in the future”.
Indeed, some matters on which views are being gathered now ahead of "a fuller view of national policy" are not included in the indicative list, such as potentially strengthening of the existing small sites policy and "small scale nature interventions".
The consultations on the first draft National Development Management Policies and a revised NPPF, refocused on plan-making policies, are to be undertaken together, following Royal Assent of the LURB.
Some national policies would remain in the residual “NPPF” others might become NDMPs, with new policies being added to both documents. It is not yet determined which category national policies will fall into, so there is still a chance to influence this (see questions 49-52).
Not all of these proposed updates relate to recent changes. The intention to “review the approach to town centre and out-of-centre development in the light of the Use Class Order changes” as part of the “full NPPF consultation”, rather than now, notwithstanding that these changes came into force two years ago, is an example of the reactive nature of this housing-focused NPPF consultation (to backbencher pressure).
Opportunities to engage and influence
It is clear that the Government intends for significant and far-reaching consultations on planning to take place during 2023.
The format of this current consultation allows a great deal of scope to positively influence several future consultation documents, in addition to submitting comments on the immediate proposed changes to the National Planning Policy Framework.
Lichfields will continue to closely monitor and analyse progress on the NPPF, Bill and associated policy and secondary legislation, which we would be happy to discuss.
[1] BBC News, Vote delay reopens Conservative divisions over housing, 23 November 2022BBC News, Liz Truss and Boris Johnson join Tory wind farm rebellion, 24 November 2022
Farming UK, Government agrees to bolster protection of farmland in Levelling Up Bill, 15 December 2022
