The
draft revisions to the NPPF (“NPPF24”) announced on 31
st July 2024 are out for
consultation for eight weeks until 11.45pm on Tuesday 24 September 2024. They comprise a mix of proposals that either accept or reverse changes made to the December 2023 version of the framework and then introduce new policies. The key changes are ultimately focused on a bold strengthening of the drive to meet housing and other development needs, based around the following:
- Updating the presumption
- Strengthening obligations on cross-boundary working
- Changes to housing need)
- Housing land supply
- Economic growth
- Green Belt
- Other changes
- Transition arrangements
- What's missing?
Updating the presumption
The Government was elected on a manifesto
[1] that promised to “
reform and strengthen” the presumption in favour of sustainable development. Whether the presumption itself (para 11) is strengthened by NPPF24 is arguable (the formulation and ‘tilted balance’ remain the same), but it is certainly clarified and the circumstances in which it applies for decision taking will broaden, partly as a function of other changes (notably on Green Belt and the new Standard Method).
The updates clarify the policies that can be considered out-of-date as expressly relating to the ’supply of land’, i.e. those that set a requirement, allocations and allow for windfall development, and removes the short lived reference to a four year housing supply.
The changes also go on to emphasise the importance of the location and design of development and affordable housing considerations when applying the presumption, without expressly setting how much weight is to be given. The opportunity has not been taken to address some of the concerns that exist
[2] about whether the presumption itself has weakened, and issues around predictability and consistency in decision making, particularly related to more subjective judgements on matters such as landscape impact
[3].
Strengthening obligations on cross-boundary working
The section relating to effective cooperation for plan-making receives the most new text (outside of the Green Belt and Annex 1: Implementation), emphasising the rediscovery of the value of strategic planning in national policy.
Issues such as meeting housing need (including neighbours’ unmet needs), strategic infrastructure and climate resilience are namechecked as areas to be expressly addressed through the duty to cooperate. The duty is also beefed up by para 27, requiring policies to be consistent with bodies where a strategic relationship exists “unless there is a clear justification to the contrary”; although Paragraph 11b and Footnote 7 continue to provide opportunities to avoid planning to meet this need.
Given the prevarication, obfuscation and tendency to “
duck the difficult decisions”
[4] on questions of calculation and distribution of unmet housing need, it is promising that local planning authorities (LPAs) and Inspectors are expressly directed by para 28 to come to an informed decision on strategic matters on the basis of the information available at the time, rather than delay to wait for a full set of evidence from all relevant parties, in context of plans coming forward at different times. Alongside the maintained direction that soundness should be based on “
strategic matters that have been dealt with rather than deferred” (new para 36) this should, at face value, provide the basis for Inspectors to ensure that plans are not rewarded for purposely avoiding making obvious but difficult decisions due to a perceived lack of clarity on points of evidence or decision making for the plans of neighbouring authorities. This point will similarly apply in situations where Local Plans may be progressing alongside or slightly ahead of emerging strategic planning frameworks that might emerge in future.
That said, the overarching mechanism for strategic planning other than spatial development strategies is conspicuous by its absence from the draft NPPF. We provide further analysis in our
'Make no little plans' blog.
Changes to housing need
Our commentary on the proposed new Standard Method can be
found here, and we have
mapped the numbers here. It retains the uplift for affordability but applied to a percentage of stock rather than demographic trends – an approach that has been floated
before - and is punchy in its outputs (a national total of 370k a year), will generate some push back, and sticking with it will be a real test of the Government’s political strength
[5].
There are also proposals to amend the policy on housing mix. Current NPPF para 63 (new 64) is proposed to be amended to include a specific reference to Social Rent and “
looked after children”
[6] as among those for whom needs should be assessed and reflected in planning policies, with the December 2023 NPPF reference to “
those who require retirement housing, housing-with-care and care homes” retained.
On affordable housing, the Government proposes at para 66 that policies specify the minimum proportion of Social Rent homes required and – for major development – that policies should “expect that the mix of affordable housing required meets identified local needs, across both affordable housing for rent and affordable home ownership tenures”, but the first call for 10% of the total homes to be affordable home ownership (e.g. First Homes) is deleted. At para 69 of NPPF24 there is a proposed change to support delivery of “mixed tenure sites” with various benefits identified.
Housing land supply
Given the combative response by the then opposition party in the parliamentary debate
[7] ahead of the publication of the December 2023 NPPF, it is unsurprising that NPPF24 largely reverses the changes made to housing land supply, which were summarised
in our blog at the time.
Most notably, NPPF24 restores at para 76 the requirements for LPAs to demonstrate a five year housing land supply (5YHLS), even when the adopted plan is less than five years old. This reflects the need for LPAs to adapt and respond to changes in delivery (or lack thereof) after the adoption of a plan, to ensure that the LPA continues to meet their need. This will be a core policy tool in Labour’s efforts to boost delivery towards 1.5 million homes over this parliament, although whether this is likely is something we explore in our commentary on the proposed Standard Method
here.
The 10% buffer for the rarely used ‘annual position statements’ has gone, whilst the 5% buffer returns alongside the 20% buffer for LPAs that have scored below 85% in the housing delivery test (HDT).
Also gone as expected is the reduced requirement to demonstrate a 4YHLS for plans that had been submitted or reached Reg 18 or 19, restoring consistency for LPAs regardless of plan progress.
The restoration of five-year land supply obligations in full becomes potentially very powerful alongside the proposals for ‘Grey Belt’, which we discuss below.
Economic growth
Updates to the chapter on economic growth are predominantly focussed on additional industries and uses where planning policies should be identifying sites to meet emerging needs and drive economic growth.
There is no dramatic change to the policies on economic growth, but NPPF24 proposes to expressly require LPAs to identify “appropriate sites” for needs of the modern economy, with “laboratories, gigafactories, data centres, digital infrastructure, freight and logistics” (all undefined in policy) specifically highlighted.
There is also a new requirement to make provision for the
“expansion or modernisation of other industries of local, regional or national importance to support economic growth and resilience”. This harks back to one of the defining factors that made Milton Keynes so economically successful: its 1970 Plan was based on an economic land strategy described in the following terms
[8]:
“… the Plan provides firms with a wide variety of locations in vigorous centres of activity, in areas adjoining the city’s parks, in areas with extensive space for expansion, in areas where a firm can create its own landscaped setting, on small plots close to residential areas, and on the very extensive level land in the north east of the city”
Interestingly, there is no reference to the national industrial strategy or to require plans to maintain a rolling supply of immediately deliverable land for economic growth which some had suggested.
A shortcoming in current planning practice is how many LPAs go about estimating the future needs and demands for economic development land, with the guidance (and thus practice) not having kept pace with rapid changes in industry and business needs, for example the sectors now proposed to be referred to. Methodologies are based on techniques last updated in 2004
[9]. The new policy provisions will need to be accompanied by an update in guidance. This will need to reflect that, for many new sectors (for example, digital infrastructure) the drivers of demand are often mobile and endogenous and more influenced by factors like grid connections that extend beyond local authorities’ boundaries.
The reference to “
significant weight” being “
placed on the need to support economic growth and productivity” is retained
[10], but the NPPF 2012 reference to the planning system doing “
everything it can to support sustainable economic growth” has not returned.
Green Belt
Labour’s biggest policy initiative is reform of Green Belt policy and the introduction of the ‘Grey Belt’, first mooted in October 2023 as a description of land use and landscape quality, with particular reference to the now infamous former petrol station in Tottenham’s Green Belt (see Figure 1 below).
Figure 1 The Grey Belt – where it all started
Source: Google Maps (2022) Former Petrol Station, Ferry Lane, Tottenham Hale
What is Grey Belt?
In the media coverage of the Labour’s ‘Grey Belt’ policy in April, it was described as:
“being broader than brownfield, covering areas without permanent structures such as car parks and some green spaces with ‘little intrinsic beauty or character’”
However, the definition has evolved again and the NPPF24 definition (in the glossary at Annex 2) describes the Grey Belt as covering areas of Previously Developed Land (PDL) and/or land that make a “limited contribution” to the Green Belt purposes
[11].
A Lichfields review of a random sample of 20 Green Belt Reviews (GBRs) carried out for LPAs across the country found:
-
two GBRs that resolutely failed to identify any land that made a limited (or low) contribution to Green Belt purposes,
-
nine GBRs that identified between one and nine parcels at the bottom of the scale
-
The remainder identified between 17 and 84 individual parcels that made a limited contribution to Green Belt purposes.
-
In a disappointment to advocates of fairways and putting greens as the panacea for the housing crisis, Golf Courses tended not to sit at the bottom of the scale in terms of Green Belt purposes, with most (including a number that are draft housing allocations in emerging Local Plans) being regarded as having moderate contribution to Green Belt purposes.
However, for Grey Belt, "limited contribution to Green Belt purposes" may not mean what is usually does.
The consultation document suggests that (and invites views on), for the purposes of ‘Grey Belt’, this would mean the land would:
-
Not strongly perform against any Green Belt purpose; and
-
Have at least one of the following features:
-
Land containing substantial built development or which is fully enclosed by built form
-
Land which makes no or very little contribution to preventing neighbouring towns from merging into one another
-
Land which is dominated by urban land uses, including physical developments
-
Land which contributes little to preserving the setting and special character of historic towns
This raises the potential that very significant areas of land that are ‘urban fringe’ might represent Grey Belt, even if a conventional GBR finds that the site performs ‘moderately’ against Green Belt purposes individually and as a whole.
Equally, some land that performs only a limited role against Green Belt purposes might not be classified as ‘Grey Belt’.
Ultimately, how much land is defined as Grey Belt will depend on the Guidance and, probably, how (and perhaps who) carries out GBRs. There are current inconsistencies of approach to GBR's and clarity has long been needed on how one goes about sizing parcels for assessment, the granularity of appraisal, and how the purposes are interpreted.
Compulsory Green Belt Reviews to meet development needs
Whilst ‘Grey Belt’ has captured the headlines, of most impact is that NPPF24 at para 142 proposes that housing needs can expressly justify exceptional circumstances for Green Belt release, going on to mandate that LPAs review and, if necessary, alter Green Belt boundaries when they cannot fully meet housing or commercial requirements. Prior to the December 2023 NPPF, there was an implicit recognition that LPAs were required to review Green Belt boundaries to address needs as part of their testing of reasonable alternatives, but the obligation to do so – and meet needs in full - is now proposed to be made plain. The expectation to meet need is subject to the question of whether the Green Belt review demonstrates that such alterations would “fundamentally undermine the function of the Green Belt across the area of the plan as a whole” – we can expect that to be a new battle ground of Local Plan examinations.
Para 144 introduces a sequential approach to Green Belt release, prioritising PDL in sustainable locations first, before considering Grey Belt land in ‘sustainable locations’, and finally, other ‘sustainable locations’ within the Green Belt. Notably, NPPF24 has chosen not to use the existing formulation of “locations which are or can be made sustainable” that exists in current Para 109. This could be tidied up in the final version.
Development of ‘Grey Belt’ is ‘appropriate’ and does not need to demonstrate 'Very Special Circumstances'
NPPF24 also expands the definition of development that is not inappropriate in the Green Belt at para 152 to include “Grey Belt land in sustainable locations” and where LPAs cannot meet the 5YHLS, or falls below the 75% HDT threshold, or “there is a demonstrable need for land to be released for development of local, regional or national importance." In view of how many Green Belt LPAs do not have up-to-date Local Plans and will almost immediately be without a 5YHLS (alongside the new Standard Method), this is potentially a very powerful tool for unlocking housing delivery in areas that were hitherto off-limits.
Taken together, these updated Green Belt policies set out a significant step change from the approach of the past few years and provide a direct instruction to those LPAs (they know who they are) that have historically refused to countenance a serious review of historic Green belt boundaries in the face of acute housing pressures.
But… the ‘Golden Rules’
The complicating factor is that NPPF24 also introduces development management policies (the so-called ‘Golden Rules’) at paras 155-157 that specifically apply both to developments
on land released from the Green Belt and developments have been permitted through development management[12]. Para 155 requires that these developments should be subject to:
-
for housing schemes, the provision of at least 50% affordable housing (subject to viability);
-
relevant infrastructure improvements; and
-
provision or improvement of green spaces accessible to the public. It states “the objective should be for new residents to be able to access good quality green spaces within a short walk of their home”.
Requirements 2 and 3 are unlikely to be problematic in of themselves. The crucial issue is viability of affordable housing provision. It is highly unlikely that most schemes will be capable of delivering 50% affordable housing, at least under current Government funding regimes, so almost all schemes will be subject to viability testing.
Here, Annex 4 of NPPF24 ‘Viability in relation to Green Belt release’ raises some questions. In defining viability, it seeks to define a national policy basis for adopting an Existing Use Value (EUV) plus a
“reasonable and proportionate premium” when calculating benchmark land values (BLV) as part of viability assessments. However, a
“reasonable and proportionate premium” is different to
“the minimum return at which it is considered a reasonable landowner would be willing to sell their land” as defined in the current PPG
[13]. The
consultation raises three options:
-
Government sets a benchmark land value for viability assessments for Green Belt to then inform LPA policies. This raises the question of a two tier land market for Green Belt / non Green Belt.
-
Government sets policy parameters so that where land transacts at a price above a nationally-set benchmark land value, policy requirements should be assumed to be viable
-
Government sets out that where development proposals comply with benchmark land value requirements, and a viability negotiation to reduce policy delivery occurs, a late-stage review should be undertaken, in effect an overage mechanism.
This means the prospect of setting benchmark land values for Green Belt below that of other land, and then using LPAs and Homes England CPO powers to ensure policy-compliant schemes come forward.
This differential viability approach means a two-tier land market for Green Belt release compared to other areas of land. At one level it might even incentivise LPAs to release Green Belt over other forms of land (due to there being, in theory, more land value to be captured from Green Belt than other sites it mght allocate). However, the bigger risk seems that if BLVs values are set at a level below that which current viability assessments would regard as “the minimum return at which a reasonable landowner would be willing to sell their land” it risks holding back that land being brought forward, and arguably provides an extra complication for plan making and applications.
Other changes
The principle of brownfield development
NPPF24 introduces an acceptance in principle for brownfield developments at para 122 (c), building on the existing requirement to give such developments substantial weight (which is maintained) and further strengthening policy support for housing development on brownfield land.
The character test (as a justification for not uplifting densities in urban areas) that was introduced by the NPPF at para 130 is proposed to be deleted. Because it was dependent on future design codes within adopted plans, it was always unlikely to have a huge impact, at least in the short to medium term.
Design
Some of the more politically charged elements of the December 2023 NPPF were the changes to the sections on design, and the efficient use of land. As anticipated, references to beauty and detailed descriptions of mansard roof extensions have been removed and replaced with more concise passing references.
Public services infrastructure
A small but notable tweak at para 98 introduces significant weight for “new, expanded or upgraded public service infrastructure”, which should provide a boost for developments aligned with public service providers, particularly when seeking to rationalise land and release funding through supporting development. There is also (para 97) some clarification on early years and post-16 facilities within the ambit of existing support for school development.
Vision-led transport planning
NPPF24 takes a forward-thinking approach to sustainable transportation in allocations, replacing the current requirement to provide “appropriate opportunities” to promote sustainable transport modes at para 112 (a) to require the adoption of a “vision led approach”. In practice, allocations could be required to consider changes in transport patterns and modes over the lifetime of a development including innovations in public transportation and planning for the future redevelopment of parking facilities as they become redundant.
There is also a clarification (para 113) that the refusal on highway grounds should be based on “all tested scenarios” which is a helpful reflection that – when it comes to transport assessments – there is no single source of truth. The question of what is a reasonable tested scenario is obviously an area of debate, but this could be very powerful in unlocking some schemes stalled by highway objections.
Renewable energy/low carbon development.
Planning support for renewable energy and low carbon energy sources (and associated infrastructure) is to be beefed up, with para 161 (b) requiring LPAs to identify suitable areas for development, rather than just consider identifying such areas. It will be interesting to see how constrained urban LPAs seek to meet this requirement without a greater reliance on cross-boundary working.
This position is further strengthened by the introduction of “significant weight” for the contribution of renewable and low carbon developments towards renewable energy generation and a broader net zero future.
Agricultural Land
NPPF24 proposes to delete the December 2023 addition in current footnote 62 that: “the availability of agricultural land used for food production should be considered, alongside the other policies in this Framework, when deciding what sites are most appropriate for development.” Arguably this covered by Para 180 b).
Transition arrangements
Some of the most complicated changes relate to Annex 1: Implementation and the impacts of NPPF24 on plan-making (paras 226 – 229).
To which emerging plans will the new Framework apply once adopted? Lichfields has produced the decision-tree below setting out our interpretation of the transitional arrangements for the application of NPPF24 for plan-making.
As an initial carve-out, NPPF24 would not apply for emerging Local Plans in London (where the operative Strategic Development Strategy is less than 5 years old), or LPAs progressing a Part 2 (non-strategic) plan that does not set a housing requirement.
Local Plans that do not reach Regulation 19 by the time that NPPF24 comes into force would be required to take full account of NPPF24 policies, in addition to the updated Local Housing Need (LHN) figures.
Where a Local Plan has reached Regulation 19, the annual housing requirement in the plan will be compared against the updated LHN for the authority area. If the emerging annual housing requirement in the draft Local Plan is more than 200 dwellings per annum (dpa) below the new LHN, the LPA will be required to revise its emerging Local Plan to reflect NPPF24 and the updated LHN and submit the plan for Examination within 18 months. Where the emerging annual housing requirement is within 200 dpa (or exceeds) the updated LHN, the plan may progress to Examination under the NPPF that is currently applicable to the plan.
All Local Plans that have been submitted for Examination by the time that NPPF24 comes into force will progress under whichever NPPF is currently applicable. Nonetheless, the same 200 dpa threshold is applied to all plans. Where the annual housing requirement in a Local Plan that is subsequently adopted is more than 200 dpa below the new LHN, the LPA will be expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need.
Of course, the new plan-making system has yet to be defined beyond the July 2023 consultation (which we
summarised in a blog at the time), and the
‘expectation’ at para 228 could well be open to challenge by the first few LPAs that are asked to immediately start preparing a new plan.
This would function, in effect, as an early review clause. This is not a new concept for the Examination of Local Plans where a ‘poor plan is better than no plan’ has been underlying feature of a conclusion to find a plan sound and a review is required to reflect expected changes to housing need. The key in these circumstances is for the early review policy to have teeth. The Bedford Local Plan is a good example where this approach has worked in practice, with the Local Plan 2030 (adopted January 2020) closely followed by the Local Plan 2040 (submitted January 2023).
What’s missing?
A few areas not in NPPF24 are:
-
Clarifying the approach on flood risk sequential test to deal with issues raised
here. The consultation asks specific questions about suggested changes.
-
Any clarification of policy to support positive approaches to dealing with net additionality of impacts on protected areas, implementing recommendations flagged
here.
-
Any change to policy on town centres to address the changes in the commercial environment of retail, leisure and other town centre uses post-pandemic, as explored
here
RETURN TO CONTENTS
[1] The Labour Manifesto is available here
[2] See for example this article from Planning Magazine here (£)
[3] See this Lichfields research from 2018 here which found that 35% of major housing appeals were recommended for approval by officers
[4] To borrow the phrase from the 2017 White Paper see here
[5] One can reflect back on the how the August 2020 proposals – with which the current proposal has some similarities (notably a stock-based element)– were cancelled, bringing much of the Planning White Paper down with it – see blog here.
[6] Need to be evidenced by the local authority’s Children’s Social Care Sufficiency Strategy
[7] See Hansard here
[8] The Plan for Milton Keynes 1970 para 192
[9] The so-called ‘brown book’ guidance on Employment Land Reviews
[10] The subject of recent litigation by Bewley Homes [Bewley Homes PLC v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWHC 1166 (Admin) (16 May 2024)] over whether this meant that a decision maker should automatically give significant weight to economic growth.
[11] With the exception of land covered by footnote 7. The five Green Belt purposes remain as:(a) to check the unrestricted sprawl of large built-up areas;(b) to prevent neighbouring towns merging into one another;(c) to assist in safeguarding the countryside from encroachment;(d) to preserve the setting and special character of historic towns; and(e) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.
[12] This would apply to all development proposals, those both inappropriate (required to demonstrate Very Special Circumstances) and appropriate, including on previously developed land that would have been permitted under the current NPPF. It is not defined whether these ‘Golden rules’ would apply to sites released from the Green Belt pursuant to previous versions of the Framework.
[13] PPG Paragraph: 013 Reference ID: 10-013-20190509 available here
