'So Far As Possible’ – will the Housing Delivery Test lose its teeth?

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‘So Far As Possible’ – will the Housing Delivery Test lose its teeth?

‘So Far As Possible’ – will the Housing Delivery Test lose its teeth?

Edward Clarke 06 Jan 2023
As my colleague Jennie Baker’s recent blog set out, the publication of the NPPF ‘prospectus’ and LURB reforms were gratefully received by those in the profession still refreshing webpages during Christmas week. It is the culmination of a rollercoaster ride of ambitions and changes broadly referred to as ‘planning reform’ beginning in 2017 with the introduction of the Housing Delivery Test and continuing with the 2020 Housing White Papers. More recently, it should be seen in the context of the Villiers amendments and subsequent backbench manoeuvring over the late Autumn of 2022.
For those still getting up to speed with the pre-Christmas publications: This consultation seeks views on [DLUHC’s] proposed approach to updating the National Planning Policy Framework. [DLUHC] are also seeking views on our proposed approach to preparing National Development Management Policies, how [they] might develop policy to support levelling up, and how national planning policy is currently accessed by users.
Published alongside a set of questions for consultation, there was also an indicative markup of the NPPF setting out the suggested changes. The section on the Housing Delivery Test has been amongst the most contentious – and the key focus of pre-publication intra party politicking.
The guiding amendment appears in the Examining Plans section; the proposed change from seeking to meet an area’s objectively assessed need “as a minimum” to, “as far as possible”.
Three key caveats are introduced which reduce the pressure on local authorities to meet what is now even more clearly an “advisory starting point” to calculating their housing requirement. These amendments combine to reduce the number of areas which ‘fail the test’ or where the ‘tilted balance’ in favour of sustainable development is applied.

1.  Where there is clear evidence of past ‘over-delivery’.

Over delivery here is set out in terms of the number of homes permitted by a local planning authority compared to the housing requirement in the existing plan, not necessarily the most up to date analysis of local housing need. Local planning authorities that grant sufficient deliverable permissions are no longer subject to ‘the presumption in favour of sustainable development’. In this case, the consultation sets deliverable as 115% of a Plan’s housing requirement or local housing need (there is some debate about whether this or a different fixed measure would suffice in this case). Instead, if insufficient homes are built in these areas, authorities are obliged to produce an action plan identifying the cause of under delivery and the actions required to increase it. This is concerning, as it aligns LPA’s delivery targets to issuing planning permissions rather than new homes being built.

2.  Meeting the needs would require building at densities significantly out of character with the existing area.

Much has been made about what the slightly nebulous term ‘significantly out of character’ will mean, and some of this will be set out in subsequent design codes, but the principle is that delivering sufficient homes to meet local housing need is secondary to maintaining the character of an area, as defined by the density of its housing. This is clearly a significant pivot from the 2017 origin of the standard method aimed at holding authorities to account that might otherwise ‘duck potentially difficult decisions’. The interpretation in law of what defines significantly out of character will also be hotly contested and might take time to clarify, delaying further much needed progress in local plan coverage.

3.  Neighbourhood plans are now protected for five years rather than 2, and no longer are confined to areas delivering ‘sufficient homes’.

Less of a caveat, but an important change for some areas, is the bolstering of neighbourhood plans. The proposed change would mean that in areas where local planning authorities’ strategic policies are out of date, the presumption in favour of sustainable development will not apply if there is a neighbourhood plan (more on this in our upcoming blog on the 5 year housing land supply position).
There are significant concerns that these measures, taken together with the other proposed changes to the NPPF, fundamentally weaken the ability to hold local plans and planning authorities to account over a consistently assessed evaluation of housing need. Instead, the NPPF amendments introduce a set of caveats that set LPAs a requirement to deliver sufficient homes only ‘so far as possible’. This change in emphasis reflects the political reality of passing key legislation in the context of strong ‘backbencher’ objections. However, this comes at a cost, if they pass it will significantly reduce the number of homes being delivered and will form a brake on the momentum towards a political consensus that increasing housing supply should be a national priority. The Housing Delivery Test is imperfect, and our research has in the past shown where it has lacked the necessary ‘bite’ to make a difference in much of the country; the concern is that the most recent proposed changes will make it even more toothless at significant cost.