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Revised NPPF: a new beginning at the end of a long and winding road?
The final version of the revised National Planning Policy Framework (NPPF) was published on 24 July 2018, on the very last day before summer Recess and avoiding Parliamentary debate. In contrast, the draft version (published in March for consultation) had been announced by the Prime Minister Theresa May at a dedicated launch event. Much has changed in the make-up of Government in the four months since the consultation started (not least, the Housing Secretary and Housing Minister); however, and notwithstanding the huge amount of responses received (almost 30,000), changes made to the final version of the revised NPPF focus on clarifications and re-wording, with very few more significant amendments. Naturally, wider implications and potential impacts of the new policies will become clearer over time; for now, we have identified eleven points where changes have been made following the draft NPPF’s consultation and which are worth bearing in mind. 1. Using design policies as a key to boosting house building The revised NPPF gives a new centrality to design policies, as they are considered instrumental in delivering new homes. In his Written Ministerial Statement announcing the launch of the revised Framework, Housing Secretary James Brokenshire said: ‘[…] Critically, progress must not be at the expense of quality or design. Houses must be right for communities. So the planning reforms in the new Framework should result in homes that are locally led, well-designed, and of a consistent and high quality standard.’ Chapter 12 ‘Achieving well-designed places’ is where this renewed rhetoric is translated into policy. Paragraph 124 specifies that ‘being clear about design expectations, and how these will be tested, is essential’ for achieving sustainable development. Effective engagement e.g. with local communities (including through workshops), the use of ‘local design standards or style guides’, and the refusal of permissions for developments of poor design are some of the ways the revised NPPF aims to achieve this objective. Crucially, para 130 requires local planning authorities (LPAs) to make sure that the quality of approved developments does not materially diminish ‘between permission and completion, as a result of changes being made to the permitted schemes’. 2. Planning application viability assessments as exception to be justified The front-loading of viability assessment at plan-making stage (rather than when determining applications) was already anticipated by the draft revised NPPF, as the expectation was to be for plans to set out the levels and types of affordable housing and other infrastructure that would be required from proposed developments. However, changes included in the final version are quite significant when compared to both the original NPPF and the draft revision, particularly around paragraphs 34 and 57. The revised NPPF’s paragraph 34 on development contributions removes the possibility for plans to set out circumstances when further viability assessment may be required in determining individual planning applications. The reasoning is in para 57: the revised NPPF puts the burden on applicants ‘to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage’. Furthermore, para 57 goes on to state that it will be for the decision maker to decide about the weight to be given to the viability assessment ‘having regard to all the circumstances in the case’ (including whether the plan/evidence is up to date, and potential changes to site circumstances). 3. Standardised methodology and Housing Delivery Test confirmed (for now) The new standardised methodology to assess housing needs and the Housing Delivery Test are two of the most anticipated changes to housing policy that the Government is bringing forward, and they are reflected in the revised NPPF (and accompany documents). Unsurprisingly, neither has been significantly amended when compared to previous consultation versions, probably reflecting the inherent complexities behind their ‘construction’. However, of interest in relation to the standardised methodology is the Government response to the draft revised NPPF consultation which highlights: ‘[…] it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018. In the housing White Paper the Government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.’ In short, the methodology is confirmed for now, but everything may change, following the release of household projections in September 2018 (see this Lichfields blog for further details). 4. Lower requirement for small (and medium) sized sites The draft revised NPPF’s requirement for at least 20% of the sites identified by LPAs in their plans to be half a hectare or less has been changed and potentially made more achievable. The final version of the revised NPPF now expects LPAs to accommodate at least 10% of their housing requirement on ‘small and medium sized sites’ (up to one hectare) through their development plans and brownfield land registers. Furthermore, it is recognised that the 10% target may not be achievable in all circumstances; in such cases, the preparation of the relevant plan policies should detail the ‘strong reasons’ that make the target unachievable. 5. More clarity on strategic and non-strategic policies The draft NPPF’s reference to ‘strategic’ and ‘local’ policies - which caused confusion in relation to spatial development strategies, and appeared to undermine the need for local plans - has been clarified. The final revised NPPF now distinguishes between strategic policies (which should look over a minimum of a 15-year period) and non-strategic policies (included in local plans, when these are not considered strategic policies, and in neighbourhood plans). Both ‘strategic’ and ‘non-strategic’ policies are defined in more detail in Annex 2: Glossary. 6. Town centre diversification promoted The rapid changes that are affecting the retail sector and, as a consequence, England’s town centres are acknowledged and reflected in the final version of the revised NPPF. It recognises that diversification is key to the long-term vitality and viability of town centres, to ‘respond to rapid changes in the retail and leisure industries’. Accordingly, planning policies should clarify ‘the range of uses permitted in such locations, as part of a positive strategy for the future of each centre’. The draft revised NPPF’s reference to town centres in decline has been removed, possibly because of its unclear wording and most probably in wider recognition of the effects that changed shopping habits are already having on town centres.    7. Land assembly and compulsory purchase Reflecting wider debates about the role of LPAs in bringing forward enough land for housing developments to meet their identified needs (and the Government’s 300,000 homes/year target), paragraph 119 now details some of the powers that proactive LPAs should use. These include specific reference to facilitating land assembly, where possible, and using compulsory powers where this is considered beneficial to ‘meeting development needs and/or secure better development outcomes’. 8. Green Belt: of course it’s here to stay Unsurprisingly, Green Belt policies have not changed significantly from the draft version published for consultation; however, two minor changes in wording are of interest. Paragraph 136 on exceptional circumstances to amend Green Belt boundaries now refers to these being ‘fully evidenced and justified’, an addition since the draft revised version. While this might appear to be a more stringent requirement, new para 137 specifies that, to justify the existence of exceptional circumstances, an LPA ‘should be able to demonstrate that it has examined [it was ‘should have examined’] fully all other reasonable options for meeting its identified need for development’; this might seem like a minor change, but it could give more flexibility and a clearer path for LPAs considering releasing Green Belt in exceptional circumstances. 9. Heritage policies retained and restored Heritage and historic environment policies are generally in line with those proposed in the draft revised NPPF. Importantly, LPAs are now expected to maintain ‘or have access to’ a historic environment record (paragraph 187). One of its purposes is to be used to ‘predict the likelihood that currently unidentified heritage assets […] will be discovered in the future’. Changes to the way the impact of proposed development on the significance of designated heritage asset is assessed, which were already anticipated in the draft revised NPPF, are now confirmed and further clarified; paragraph 193 states that ‘great weight should be given to the asset’s conservation […] irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance’. Finally, where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, ‘this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use’. The term ‘optimum viable use’ was included in the original NPPF but not in the draft revised NPPF. 10. A change to transition The policies in the revised NPPF are material considerations to be taken into account in determining planning applications ‘from the day of its publication’ (i.e. from 24 July 2018). Importantly, the policies in the 2012 NPPF still apply to examining plans submitted on or before 24 January 2019. Interestingly, footnote 69 is amended to clarify that for spatial development strategies, ‘submission […] means the point at which the Mayor sends to the Panel copies of all representation made’; this is an amendment specifically made to reflect the stage reached by the draft London Plan, particularly when compared to the draft revised NPPF wording (which referred to ‘submission’ being a later stage, specifically the point in which copies of the strategies intended for publication are sent to the Secretary of State). Accordingly, the new draft London Plan will be examined against the original NPPF policies – a relief to the Mayor no doubt. 11. ‘Social rent’ back in and starter homes loosen up The revised version of the glossary at Annex 2 includes reference to social rent again, as an ‘affordable housing for rent’ product rather than in its own right; any reference to social rent housing was previously deleted from the draft revised NPPF’s definition of affordable housing. Further amendments have been made to the definition of ‘affordable housing’, particularly in relation to starter homes. Interestingly, previous reference to the maximum annual household income of eligible buyers (£80,000, or £90,000 in London) has now been removed and left as a matter for secondary legislation; this is to reflect the fact that the Housing and Planning Act 2016 does not explicitly refer to those income thresholds. Might this signal the ‘resurgence’ of starter homes? Unlikely. Overall, the impression is that the process of updating and reviewing the 2012 NPPF has been more complicated than many expected it to be, and the continuous changes in the Department and then Ministry surely have not helped (five Housing Ministers and three Secretaries of State since the NPPF review was first announced). Perhaps as a result of it having taken a good while, the revised NPPF seems to better reflect the new approach taken by the Ministry, the renewed centrality that housing policies have within the Government’s agenda and all of the case law that has come about from testing the 2012 Framework in the courts. The new NPPF even reflects Sir Oliver Letwin’s emerging findings on housing delivery, by effectively recognising that the quality and design of housing development is crucial to ensuring greater community support. Some reforms do seem ambitious, particularly around viability assessments and given the English plan-led system, and the practical impacts of these reforms ought to be tested and monitored over a longer period of time to understand whether Government has struck the right balance. As acknowledged in James Brokenshire’s Written Ministerial Statement, the revised NPPF alone will not be enough solve the housing crisis; other reforms, the support of central Government, cooperation with/between stakeholders, local authorities and communities are all crucial elements in addressing the housing challenges the country is facing. As usual in these cases, whether the revised NPPF represents a new beginning or rather a false start is too soon to be said, as its final judgement will be solely based on its achievements and/or failures. See the ‘Revised National Planning Policy Framework’ suite of documents here Lichfields will publish further analysis of the consultation on the draft revised NPPF and its implications. Click here to subscribe for updates.

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Should zoning be introduced in England?

Should zoning be introduced in England?

Giorgio Wetzl 14 May 2018
We can all agree on the fact that the English planning system is a very flexible one; however, in recent times there seems to be a growing trend towards wanting increased certainty from the planning and development process. Examples can be found in the draft London Plan (the ‘fast-track’ application route not requiring viability assessment) or in the draft revised National Planning Policy Framework (promoting testing viability at plan-making stage and not on application), to name just two initiatives in recent consultation documents. This interest in increased certainty in planning derives from different, current challenges, such as the need to increase housing delivery to 300,000 homes/ year by the mid-2020s, or to find new ways to fund affordable housing and infrastructure delivery which are more responsive to the actual needs of communities. In turn, this desire for more certainty translates into proposals for a more robust role for development plan documents (and plan-making in general), as opposed to ad-hoc determination of planning applications. Zoning is sometimes mentioned as an alternative approach to the current planning regime in England that could address these issues, being another way of managing development through planning by providing increased certainty from the outset - especially as zoning systems are already used by many western countries around the world (in different forms).   1. What is zoning? Let’s start with the basics: zoning is a land use planning practice which focuses on ‘dividing’ a local authority’s area into different parts where some uses are permitted, while others are forbidden by right. As the RTPI explains[1]: ‘A complex series of binding rules have to be set down within which development can occur. Such rules can be laid out for existing developed areas, as well as for new development areas. Developers have to comply with the rules, with limited freedom to build or change use, as long as their proposal complies with the rules set out which are legally binding.’ Accordingly, there are two main tools which define each and every zoning system: a zoning map; and legally-binding zoning regulations. The zoning map shows a local authority’s territory ‘covered’ by the different land use zones (‘zones’) that regulate its development. The zones are usually identified at block/neighbourhood level. The zoning regulations set out what is allowed/ prohibited in each zone. They usually are in a text-based document which contains the rules that regulate development in each zone, while also identifying acceptable levels, parameters and mandatory requirements (usually as a range) in terms of density, building height, distance from other plots, and other detailed aspects of development. The combination of the zoning map and regulations set out the different uses (and quantities and parameters of those uses) that are permitted by right in different parts of a town or city. Once the local authority is satisfied that a development complies with the zoning rules, the permitted development can usually proceed following the submission of a construction start notice. Most uses in a zoning system fall (or should fall) within those permitted by right; however, certain zoning systems allow for ‘special’ and/or ‘conditional’ uses, which are exceptions to the zoning rules, and which usually are dealt by imposing stricter controls and/or through standard planning permission routes. Zoning map of town planning area of Tokyo, 1925 (copyright: Norman B. Leventhal Map Center, available on Flickr)   2. There is no one zoning system Another crucial point about zoning, which often causes a lot of confusion, is that it is not a ‘one and only’ system, but rather a variety of different approaches which fall under the same ‘umbrella’. There are different objectives and goals underpinning each and every zoning system, as the urban development goals could be very different in, let’s say, New York City or a Bavarian village. There are many ways of comparing systems, for example by looking at: The institutional tier establishing the zone: is it at national, regional or local level? The nature of the zones (exclusive vs inclusive): are ancillary uses to the main permitted use excluded, or is there an inclusive approach towards minor uses? The relationship between different zones (hierarchical vs non-hierarchical): are uses permitted in the ‘top’ zones allowed in the zones below (hierarchical), or is each zone totally independent and self-defining (non-hierarchical)? The overall number of zones: did the legislator opt for a very detailed and prescriptive approach to zone setting (i.e. a high number of zones), or one where zones are defined by more generic and broader parameters (i.e. fewer zones, with more flexibility)? For example, in most of the United States, Euclidean zoning[2] applies, where zones are decided at local authority level. They are of an exclusive nature, meaning that parameters are very strictly set and generally do not allow complementary uses. US zoning is often also strongly non-hierarchical, meaning that the most protected uses (such as residential) are not allowed in ‘lower’, less protected zones (such as commercial, or light industrial) as a direct consequence of a detailed approach to zone definition and going against a mixed use approach. In terms of the number of zones, this is usually very large due to their detailed nature; in New York City, for example, there are 21 basic Zoning Districts, each having additional sub-categories for specific requirements (which are listed in the 4,300+ page long Zoning Resolution). In Germany, at the other end of the spectrum, zoning frameworks are agreed at federal level, while states (i.e. regions) and local authorities retain powers to make specific provisions for their own areas. The German approach is inclusive, meaning that each zone allows a predominant use (such as residential), while also considering other complimentary uses (such as small shops) as appropriate - effectively supporting a mixed use approach. The German approach is also hierarchical in nature, meaning that ‘higher’ uses (such as residential) are allowed in all the zones, as long as this does not harm the living conditions of residents (in terms of their exposure to externalities, such as noise or air pollution). Finally, in terms of number of zones, the German federal zoning framework (‘Baunutzungsverordnung’ a.k.a. ‘BauNVO’, or Land Utilisitation Ordinance) identifies four basic land use classes, which are then divided into 10 sub-classes. In short, there is no such thing as THE zoning system, but rather a series of zoning systems with their own specific features. Extract from the Berlin Land Use Plan and related key, 2015 (copyright: Senatsverwaltung für Stadtentwicklung und Wohnen, available online)   3. Pros, cons, and potential opportunities of zoning First, it is important to underline that each stakeholder involved in the planning and development process (housebuilders, land promoters, local authorities, communities, etc.) has very different aspirations and goals that they aim to achieve through the planning system. Accordingly, looking at zoning pros and cons really links to which stakeholder’s point of view is being taken. Bearing the above in mind, the main advantage of a zoning planning system seems to be the provision of greater certainty from the outset, through the establishment of a quantum of acceptable permitted development via the zoning map and regulations. This means that the development potential is recognised for each and every parcel of land, without the need to apply for establishing land use, scale etc.; this significantly reduces the scope for any hope value and, as a consequence, tends to fix the overall value of land (if the development potential is fixed, then also the underlying land value will be more certain). On the other hand, this greater degree of certainty is in direct opposition to what many believe is the best feature of the English planning system - its flexibility and adaptability to specific local circumstances at any point in time. Here it is important to underline what should be obvious, that there is a trade-off between certainty and flexibility and that, by definition, zoning is not a flexible planning system (or at least, not as flexible as the English plan-led one). Furthermore, zoning systems require a great many regulations to deal with permitted/forbidden uses in each zone, related parameters and standards, and possible exceptions; this increases the legislative complexity of such systems in a very significant way. As such, the introduction of a zoning system could hardly be coupled with any intention to cut red tape. Other opportunities could arise from the introduction of a zoning system in England however, such as: land swap and trading rights (the transfer of development rights on different plots, to allow higher densities and free up land elsewhere); development premiums (a system of development benefits, where developers could build more if they achieve certain goals and objectives set by local/central Government, such as energy performance, or affordable housing); and land pooling (mostly for urban expansions, where public bodies can drive the process assigning specific development rights to parcels of greenfield land). Extract from the New York City Zoning Map, 2018 (copyright: New York City Planning Department, available online)   4. What could the effects/consequences of zoning in England be? If a zoning system were to be introduced in England, it is naturally difficult to predict ‘on paper’ but let’s look at some potential consequences - here are just four to start with: Shifting local planning department skills and resources: a move towards zoning would certainly shift the local planning authority resource balance towards plan-making, reducing the need for development management (ideally). This would be a key outcome from the main feature of a zoning system, which requires significant upfront plan-making and regulatory work, rather than ad-hoc control in determining planning applications. A new pattern of consultation and engagement: as the expectation would be for fewer planning applications to come forward, in light of the development permitted by the zoning map and regulations, there would be reduced necessity for consultation on individual schemes. On the other hand, this might mean that there would be an increased need for consultation when zoning requirements and allocations are being put together, as well as on design codes. More legal challenges: zoning systems can create controversy over development and land values, as a consequence of sometimes seemingly arbitrary zoning allocations which are then legally-binding. This might lead to an increase in appeals/judicial reviews as landowners/developers might see their sites allocated unfavourably. Parliamentary time: significant parliamentary and government time would be required to repeal/replace current planning legislation, policy and guidance nationally. Illustrative framework and parameters for New York City’s Zone R4, 2018 (copyright: New York City Planning Department, available online)   5. Which are the zoning-type tools currently in the English planning system? A recent study commissioned by the RTPI on planning risk and development[3] highlights how certain planning tools - Permission in Principle in particular - already exist and attempt to provide greater certainty within the English planning system. In addition to the more recent Permissions in Principle and brownfield land registers, there are permitted development rights (PDRs), and local development orders too. However (with the exception of PDRs), the newer zoning-type planning tools need to be effectively tested in practice, and significantly strengthened, before they can become a valid alternative to more long-established (i.e. ‘safe’) planning routes to development delivery. These tools do however already represent a good starting point for testing stakeholders’ appetite for increased certainty in the planning regime, and how much they are willing to accept different trade-offs (more certainty comes at a cost). Illustrative framework and parameters for Berlin’s residential land W1, 2007 (copyright: Senatsverwaltung für Stadtentwicklung und Wohnen, available online)   This broad-brush overview cannot provide any detailed answer as to how zoning could potentially impact the English planning system. However, and in light of the recent policy proposals made by the Government and the Mayor of London (particularly viability assessment at plan-making stage), the time seems right to at least consider alternatives to what many see as a dysfunctional planning system. While a radical overhaul of the existing planning system in England to introduce zoning does not seem either viable or desirable, particularly in light of the many uncertainties and few advantages identifiable, testing alternatives is the normal course of action when wanting to change and improve something. To conclude, there are few points which are worth bearing in mind. First, time matters, and whatever improvements are sought, the timeframe needed to reach the final outcome has to be considered. Secondly and linked, transitional arrangements will be crucial; as much as the final outcome could be the most desirable, due consideration needs to be given to how to get there, and whether the benefits of moving towards zoning are wide enough to counterbalance the inconvenience and unintended consequences of transitioning. And finally, what is wanted from a planning system is ultimately a matter of choice; if the development sector values flexibility, then the current English planning system is probably the right one (though not the ‘perfect’ one); on the other hand, if more certainty is the goal then moving towards a stronger zonal approach could be a way forward. What is clear is that it is not possible to have the certainty that zoning provides, and the flexibility the English planning system allows, both at the same time.   [1] RTPI Consultation Response (2011), How change of use is handled in the planning system[2] From a town named Euclid in Ohio, not in honour of the Greek mathematician[3] RTPI Research Paper (April 2018), Planning Risk and Development: How greater planning certainty would affect residential development  Header image: City of Vancouver, British Columbia: zoning diagram, 1931 (copyright: City of Vancouver Archive's photostream, available on Flickr)

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