Planning matters

My previous blog post spoke to the uncertainty that has arisen since the Mead/Redrow High Court Judgment was handed down in February 2024. The judgment held that the Planning Practice Guidance (‘PPG’) has the same legal status as the National Planning Policy Framework (‘NPPF’). This means that, as detailed in the PPG, the sequential test should take account of all sources of flood risk, including surface water flood risk, and not just fluvial flood risk.  It also means that, even if a site-specific flood risk assessment (‘FRA’) concludes that mitigation measures or existing flood defences result in a low risk of flooding, the sequential test would still need to be satisfied.

Following the judgment, it has been broadly accepted that planning applications should satisfy the sequential test if any part of the site is at risk of flooding from any source, unless one of the PPG exemptions apply[1].  This gave rise to the obvious solution to avoid the sequential test by amending red-line boundary to omit areas at risk from flooding.  However, the new NPPF contains a mechanism by which it will be possible to avoid application of the sequential test even if part of the site is at risk from flooding.

 

Paragraph 175 of the new NPPF includes an addition which establishes the situations when the sequential test is not required:

The sequential test can now be avoided at application stage on sites at risk from flooding if it is possible to locate the built development, access or escape routes, land raising, and other vulnerable elements away from any areas at risk from flooding from any source.  Whilst this might appear to be a modest change in policy, it is important.  It will enable the delivery of sites where only part of the area is at risk of flooding, without the challenges and risks associated with the application of the sequential test.

By requiring those part of a site that are at risk of flooding to remain free from built development or sensitive uses, the new approach will continue to minimise the risks associated with flooding. The Government’s response to the draft NPPF consultation reiterates, as established in the PPG[2], that a site-specific FRA cannot rely on mitigation measures that require active maintenance.  This is because their effectiveness in mitigating flood risk cannot be guaranteed in perpetuity.  Active mitigation measures therefore cannot be relied on to justify not satisfying the sequential test, if the elements listed in NPPF paragraph 175 are positioned on areas at risk from flooding. 

A further addition to this part of the NPPF is set out in paragraph 173.  This states that a sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in the future from any form of flooding.  The Government’s response to the draft NPPF consultation states this paragraph has been inserted to clarify the difference between applying the sequential test to plan-making and decision making.  This paragraph previously only related to the role of the sequential test at plan making stage and so the Government is now giving it a greater remit.

An update to NPPF paragraph 180 clarifies that where planning application come forward on allocated sites which were previously subject to the sequential test at plan preparation stage, it will not be necessary to reapply the sequential test.  It is not clear how this will play out for applications on allocations where the strategic flood risk assessment (‘SFRA’) that informed the plan did not consider all forms of flooding.  In the context of new NPPF paragraph 173, it is also not clear how to judge whether the SFRA has sufficiently considered future flood risk.  However, paragraph 180 does state that “the exception test may need to be reapplied if relevant aspects of the proposal had not been considered when the test was applied at the plan-making stage, or if more recent information about existing or potential flood risk should be taken into account.”   The list of considerations that might fall within this caveat may be extensive.

If these elements cannot be positioned to avoid areas known to be at risk of flooding from any source, either now or in the future, the sequential test will need to be satisfied.  My previous blog provided some practical tips to navigate the sequential test, including how to tightly define the criteria for identifying “reasonably available sites”.  The Government’s response to the draft NPPF consultation confirms than a forthcoming update to the PPG is on the way in “early 2025” and that this will clarify the definition of “reasonably available sites” that should be considered as part of the sequential test. 

The new NPPF has confirmed that the sequential test is here to stay for sites at risk of flooding from surface water (and all other sources).  We are also now clear that site-specific FRAs cannot rely on active mitigation measures to avoid undertaking the sequential test, where one would otherwise be required.  Further updates to the PPG on this topic are expected in early 2025.  In addition to clarifying the definition of “reasonably available sites”, it would be helpful if the following points are also clarified by the update to the PPG:

1. That failing the sequential test does not preclude granting planning permission; it’s only one consideration in the overall planning balance;
2. Whether the sequential test needs to be satisfied again for planning applications on allocated sites, where the SFRA did not consider flood risk from all sources now and in the future;
3. How the catchment for identifying reasonably available sites should be defined;
4. How the scale and density of a proposed development should inform the identification of reasonably available sites; and,
5. Whether (and how) one should identify and assess a series of smaller sites as part of the sequential test.

The Mead Case was heard by Court of Appeal in November 2024; one of the issues that was addressed through this case was the relationship between the NPPF and PPG.  The forthcoming judgment may have a bearing upon the scope and timing of the forthcoming update to the PPG. Whilst the new NPPF has moved things on in respect of the consideration of flood risk at development management stage, it is clear that things are still far from resolved.

A new Government, a new direction – in this case, a new National Planning Policy Framework (NPPF) and a significant U-turn in policy away from the provisions related to Housing Land Supply (HLS) compared to the December 2023 version: Paragraph 76 I hardly knew thee.

In short, most of the changes to the calculation and operation of HLS in the new NPPF are as per the consultation draft NPPF issued in July and reverse the amendments that were introduced in December 2023:

1. The protections afforded to qualifying authorities under former Paragraph 76 have been removed. All LPAs must now be able to demonstrate a 5YHLS (now set out at Paragraph 78).
2. The 5% buffer of previous NPPFs is back (Paragraph 78a).
3. The 20% buffer for under delivery, as measured by the Housing Delivery Test (‘HDT’), remains (Paragraph 78b) – note that a new 2023 HDT was published alongside the new NPPF.
4. Annual Position Statements are no more, nor the corresponding 10% buffer.
5. The transitional arrangement allowing some LPAs progressing local plans to only need to demonstrate a four-year HLS is also gone.

The only new change introduced as part of the 2024 NPPF (compared to the July consultation version) is an additional route to the application of a 20% buffer. This has been adopted as part of wider plan-making transitional arrangements: aiming to ‘close the gap’ in delivery between a pipeline of sites based on adopted (or soon to be adopted) housing requirements that are significantly below the local housing need figures that are based on the new standard method ahead of new plans addressing that need coming forward.

Paragraph 78c provides details of this new route to the 20% buffer which would apply from the 1^st July 2026 where:

1. 1. The local plan housing requirement was i) adopted in the past five years (July 2021 to July 2026) against a previous NPPF, or ii) is more than five-years old and the related strategic policies have been reviewed and are considered up-to-date; and,
   2. The adopted annual average housing requirement is 80% or less of the most up-to-date standard method figure.

It should be noted that this new buffer is not cumulative with the 20% buffer for under delivery (paragraph 78b) but it would apply irrespective of the (local planning authority’s) LPA’s HDT measurement. Furthermore, the assessment of whether the adopted requirement is 80% or less against the standard method should be based on the average annual requirement across the whole Plan period (footnote 42). This means it would catch LPAs with stepped housing delivery trajectories with much greater requirements in later years.

For the purposes of paragraph 78c, the percentage measure is also to be applied in aggregate in joint local plan areas. This will have implications for some authorities that form part of a joint plan area which will be caught by the 80% threshold when assessed in combination, but where – if judged in isolation – the authority would pass the 80% test.

We are now largely back to where we were prior to the December 2023 NPPF in terms of calculating a 5YHLS. All LPAs must now demonstrate a 5YHLS (a positive change for housing delivery) and while the 5% buffer coming back is welcome it won’t change the dial much. (i.e. very few, if any, LPAs will now not be able to demonstrate a 5YHLS owing to the 5% buffer being added).

What will have a profound effect on LPAs 5YHLS position is not the changes to the methodology of calculating 5YHLS, but rather the update to the standard method for LPAs without an up-to-date plan. Most LPAs requirements have increased and have done so significantly. Once ‘healthy’ 5YHLS positions may now simply be wiped out or pre-existing shortfalls made far more acute. This will be most impactful for those LPAs in the South East where (1) there are exiting known difficulties in bringing forward supply and (2) the new standard method has an slightly greater tilt towards this region compared to the revised standard method consulted upon in July (see our separate blog on the new standard method).

This will also catch LPAs with emerging plans that are well progressed or at examination (especially given these LPAs previously benefited from the four-year HLS provisions).

Focusing in on the new 20% buffer route and its potential impact for those LPAs with a plan adopted since July 2021:

1. 1. While it will only apply from July 2026 it could start to have an impact now for those LPAs with an existing shortfall or a marginal supply. To avoid the presumption, said LPA will need to be pragmatic and start building up its deliverable supply now. The Government’s consultation response clearly states the timeframe proposed for its introduction is to enable LPAs to make provision for it. Whether in practice this happens is another matter.
      
      
   2. It won’t change the dial within those LPAs that can demonstrate a healthy supply (6+ years) under its adopted requirement. Nor will it in areas that already can’t demonstrate a 5YHLS. This means the policy won’t result in an uptick in housing supply within these areas despite said LPAs having a new standard method figure significantly in excess of its adopted .
      
      
   3. For those LPAs at examination or that are about to submit plans for examination shortly, Inspectors will need to be mindful that the Council will have a 20% buffer applied period – i.e. if a plan was submitted now, it may not be adopted for 9-12 months. Its Plan period will likely start from 1^st April 2025 or 1^st April 2026. While on adoption a 5% buffer might be appropriate, from July 2026 the Council would need to apply the 20% buffer.

Reviewing this new policy, its aim is to ‘close the gap’ and boost housing output in areas where an adopted or soon to be adopted plan seeks to deliver homes at a rate significantly below the new standard method figure. It tries also to balance this against not discouraging existing plan-making in these areas.

Noting the need to boost supply immediately, there were other options available to the Government that could have had a greater and more immediate impact on supply in these LPAs. For example, the new 20% buffer could have been cumulative with either the existing 5% buffer or the 20% buffer where there has been under delivery; or these Council’s 5YHLS requirement could have had to be based on the new standard method instead.

In the context of the Government’s 1.5 million home target – that really requires permissions to be granted now – one might say the policy adopted doesn’t go the hog to achieve the boost to supply required in areas with adopted or soon to be adopted plans delivering significantly below the new standard method. However, the Government must also balance this against what is (or at least meant to be) a plan-led system: one where if more greater sticks were brought to bear, LPAs might simply throw in the towel in terms of plan making.