Planning matters

For development management colleagues in Local Planning Authorities NPF4 could be a real headache. The letter from the Chief Planner and Planning Minister on Transitional Arrangements suggests it is all a question of incompatibility: but what constitutes incompatibility isn’t clearly defined. It is not necessarily a simple task to decide whether or not a policy written in the LDP aligned to NPF3, Scottish Planning Policy and Strategic Development Plans (where applicable) will be compatible with the NPF4 which has a very different emphasis. The NPF is no longer set out as the “spatial expression of the Government Economic Strategy”. Rather the “global climate emergency and the nature crisis have formed the foundations for the spatial strategy as a whole”. No longer is there “a presumption in favour of development that contributes to sustainable development”, the release valve that allows proposals not anticipated by the adopted LDP to be considered on their merits. No longer do Local Development Plans have to “provide for a minimum of 5 years effective land supply at all times.” Rather LDPs are expected to identify a Local Housing Land Requirement which is expected to exceed the 10-year minimum set out in Annex E of NPF4. Green belts are to be restricted to areas where there is “significant danger of unsustainable growth in car-based commuting or suburbanisation of the countryside”. This a change from their previous stated purpose. City of Edinburgh Council and Stirling Council have taken very different approaches to the conundrum that is incompatibility. Edinburgh Council have published a policy framework and Stirling have prepared guidance on considering the issue. Edinburgh’s approach puts a line through existing policies that it has decided are incompatible with NPF4.  Stirling Council on the other hand have prepared guiding principles so that incompatibility can be considered on a case-by-case basis. It is disappointing that the Transitional Arrangements do not provide a single coherent approach that could be applied by all local planning authorities. Legal opinions from KCs are already emerging[1] and it is looking more and more likely that the courts will have to decide once decisions have been appealed and outcomes regarding what constitutes incompatibility and in what circumstances have been challenged.    We have been giving this notion of incompatibility some thought. It is clear that consideration must be given to each policy in its entirety as well as to context and policy intent. Just because policies are different does not mean they are necessarily incompatible.  The Transitional Guidance suggests that “provisions that are contradictory or in conflict would be likely to be considered incompatible” but the use of “likely” makes it clear that Scottish Government do not consider that this will always be the case. Planning judgement is going to be critical if we are to navigate a way through the next 5 years until new LDPs are in place that meet the requirements of NPF4. Perhaps the area where there will be the greatest thought needed is in consideration of housing proposals and proposals in the green belt but equally proposals for the expansion or reconfiguration of existing retail parks will be hard as demonstrated by the recent Reporters decision on land adjacent to Inshes Retail Park at Inverness. In this case it was decided that the proposals were contrary to NPF4 Policy 28 because the land was not within the commercial centre boundary even though they were in an area allocated for such uses in the LDP.  This seems unreasonable and we await to see if this case of incompatibility is challenged. In terms of housing, Policy 16 is causing much head scratching. There are some who very much want this policy to apply now and believe that it should take precedence over all policies in existing LDPs which might be considered incompatible with it, particularly where these contain a release policy. There are different examples of release polices.  They are all, however, essentially the safety valve that allows housing to come forward in unallocated areas because there is a shortfall in delivery and the Local Authority’s identified supply is not meeting its housing needs.  NPF4 does not contain such a safety valve.  Many of us in the industry are however of the view that adopted LDPs must deliver what they set out to deliver and this applies to housing as much as anything else.  If a plan sets out it will deliver X number of new homes which it has evidenced are needed it is completely unreasonable to stop the plan from doing such.  This view has recently been supported by the courts[2] although this judgement does pre-date NPF4 by a month. So where does this take us in terms of incompatibility? The main thrust of NPF4 in terms of development land is that in order to be supported sites must have been identified in the LDP and allocated for the purpose proposed. This applies to all sorts of development types – business, industry, retail, drive throughs, housing, etc. But, this is not how current LDPs have been conceived. Current LDPs did not need to allocate all potential development sites because policies were in place to enable sites to come forward and be judged on their individual merits. In terms of housing some LDPs were adopted with a known shortfall of sites when compared with the identified need.  Also, not all the effective sites in current housing land audits actually have allocations, about 40% of Edinburgh’s capacity is from unallocated sites for example.  So, there is a danger that NPF4 could stifle the development of perfectly good sites that meet the tests of existing LDPs and indeed the majority of the provisions of NPF4, simply because they are not currently allocated.  In some circumstances that will mean that much needed homes in a local area cannot be delivered.  This is not a sensible approach, and a broader view of policy intent is required if we are to avoid some LDPs failing to deliver the housing and economic growth they have identified as needed because of NPF4. It is the view of many of us that Policy 16 Housing in NPF4 cannot apply until a new LDP is in place because it requires a totally different approach to be taken in terms of the identification of land for housing, the allocation of sites and delivery. Essential steps associated with the preparation of a new style LDP must have taken place before the policy can be applied. In the meantime, therefore, it is our view that existing housing policies cannot be dismissed for being incompatible.  To do so would result in a policy vacuum.  The intent of Policy 16 is clearly stated - “to encourage, promote and facilitate the delivery of more high quality, affordable and sustainable homes, in the right locations”. The policy intent is not to put the brakes on housing development until new LDPs are in place that implement the new requirements and so this policy intent needs to be delivered in the context of the existing LDPs. We would suggest that if local planning authorities agree that proposals are for “high quality, affordable and sustainable homes, in the right locations” then these are compatible with the policy intent of Policy 16 and therefore should be supported. This logic needs to extend to all policies in terms of consideration of incompatibility. The first questions should be ‘does the NPF4 policy require a new approach?’, ‘do all sites required need to be allocated and have they been?’, etc. Finally, let’s have a look at Policy 8, green belts. The policy intent does not differ much from the guidance previously provided by Scottish Planning Policy but where there is a significant change of focus is on the purpose of green belts. Policy 8 clearly states  (emphasis added) that “green belts will not be necessary for most settlements” and goes on to restrict their designation to “settlements where there is a significant danger of unsustainable growth in car-based commuting or suburbanisation of the countryside.”  Current green belts do not only perform this function and previous guidance was much looser in terms of circumstances whereby a Local Development Plan may wish to designate green belts.  It is our view that this means that all designated green belts must be reviewed in the making of new LDPs to ensure they meet this higher test of purpose. On this basis Policy 8 cannot be brought into effect until new LDPs are in place as current green belts are designated on the basis of “ directing development to the most appropriate locations and supporting regeneration; • protecting and enhancing the character, landscape setting and identity of the settlement; and • protecting and providing access to open space”. These are clearly different purposes which means that green belts as currently designated may not be necessary in terms of restricting development to the type described in NPF4 Policy 8.  This should mean that local planning authorities that have policies that allow development in the green belt that go beyond the uses in Policy 8 are not incompatible.  The purpose of the green belt as set recognises that such developments can happen, and this should continue to be the case until such time as the green belt is reassessed and a new LDP is put in place that aligns with Policy 8. There is much to grapple with, and I do not envy my developer clients or my Development Management counterparts, I am sure many are having sleepless nights. The task at hand is a difficult one but planning judgement remains the key to making good planning decisions. It looks like NPF4 and its role in the development plan is going to keep us all busy.     [1] Land North of B792, Mossend – Opinion of James Findlay  [2] Hens Nest Road, East Whitburn judgement 2023csih3.pdf (scotcourts.gov.uk)

A new Green Belt section was created when three brief paragraphs were added to the Planning Practice Guidance in July 2019. They relate to quantifying impact on openness and Compensatory Improvements. This blog discusses the aims and implications of Compensatory Improvements and looks at the issues it raises. New Guidance on Compensatory Improvements The guidance has been provided to contextualise Paragraph 138 of the NPPF which states:   “[The LPA should] set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.” (Ref: NPPF 2019, Para 138)” [Lichfields Emphasis].   “Where it has been demonstrated that it is necessary to release Green Belt land for development, strategic policy-making authorities should set out policies for compensatory improvements to the environmental quality and accessibility of the remaining Green Belt land.” (Ref: PPG, Paragraph: 002 Reference ID: 64-002-20190722) Following release, policies should set out Compensatory Improvements to the environmental quality and accessibility of the remaining Green Belt land, this could include: New or enhanced green infrastructure Woodland or other appropriate planting Landscape and visual impact enhancements Biodiversity improvements New walking or cycling routes It is possible that these Compensatory Improvements could become part of Very Special Circumstances, though this remains unproven. These are to be secured by conditions, S106 or CIL, with S106 recommended to secure the long term maintenance of any improvements. The implication of this guidance is that the LPA must decide, or clients could propose, where to locate the Compensatory Improvements. The remaining Green Belt land where these improvements are located will become of higher value and greater importance and therefore harder to remove from the Green Belt in the future. The wording of the guidance is clear that the improvements should be located in remaining Green Belt land, however in practice it is likely that the areas deleted from the Green Belt will have an area designated for these improvements immediately adjacent, ideally within the ownership of the same landowner. If another landowner is needed, this could add to the complexity of the development and potentially even a ‘ransom’ situation. As land is slowly deleted from the Green Belt over time, these compensatory improvement areas could become parks or landscaped areas surrounded by new urban development; potentially not fulfilling the Green Belt purposes but becoming important urban green spaces. The location and form of Compensatory Improvements now represents a key policy requirement which must be met when proposing sites for removal from the Green Belt. As well as demonstrating the requirement for the site to be deleted, an assessment will need to be made to determine an appropriate package of Compensatory Improvements and a parcel of land within the Green Belt within which the improvements could be located will need to be identified. Developers will then need to propose the nature and extent of the Compensatory Improvements and how they will be delivered and managed. Once secured, it would be necessary to demonstrate both the deliverability of the Compensatory Improvements and that they would constitute a significant benefit for the sites deallocation. Issues and unexplained mechanisms? In light of the above, if there is no area for Compensatory Improvements following the deletion of land, it is not immediately clear how the LPA will locate areas for Compensatory Improvements. It may be that through the Green Belt Review, the LPA, alongside landowners and developers, will identify the most valuable areas of the Green Belt, i.e. the areas which meet most of the five tests. It is worth noting that these may not necessarily be the areas of Green Belt where improvements would have the greatest impact. Given that these areas are the least likely to be deleted due to their positive contributions, it may be the case that the Compensatory Improvements are located on these areas. It would be prudent therefore to understand if Compensatory Improvements required by a sites deletion can be located on this land, and the potential landownership issues this may cause. Alternatively, if improving access is the key objective, the other land close to the urban edge and/or transport infrastructure could be most suitable. Securing a deal on any land needed for Compensatory Improvements will also be crucial. Ideally this should be understood, confirmed with the LPA then a deal done with the landowner before the removal of the Green Belt is publicized through consultation on a draft local plan. If a deal isn’t struck then a landowner may take advantage of an opportunity to increase the value of their land as the housing development becomes more dependant upon it. The additional cost of Compensatory Improvement Land and the improvements themselves also need to be accounted for as an additional cost on the housing development. They could compromise the viability of development when other costs and contributions are taken into account or reduce the return to the landowner to a level that does not incentivise them. If the owners of development land do not own any other land, should the land owner of where the Compensatory Improvements are to be located receive residential ransom values for having them there? While they are indeed crucial to unlocking the Green Belt release, this could be a disproportionate addition to the cost of development for what would be landscaping and ecological enhancements located on another owners parcel of land. Demonstrating that the location of the Compensatory Improvements have already been secured through discussions with landowners will be an essential part of demonstrating the deliverability of a housing allocation, though there is huge uncertainty in assessing what scale of Compensatory Improvements would be considered appropriate. This is completely subjective and there is significant scope for disagreement with officers and councillors. This clearly also presents an opportunity for some landowners. They could receive additional value for their land by offering it as a suitable location for Compensatory Improvements. Alternatively, if one has aspirations for development on a site currently designated as Green Belt, it will be crucial to avoid any Compensatory Improvements being located on this land, though ultimately the landowner will have the final say. Compensatory Improvements could be another well meaning planning mechanism that becomes a highly controversial area as the parameters are established through expensive and costly legal cases. Securing the release of land from the Green Belt for residential development already required ‘exceptional circumstances’. The additional requirement of securing Compensatory Improvements represent a further very difficult obstacle for landowners and developers to overcome. However, with careful planning and negotiation, with a good deal of creativity, if could also present opportunities to unlock suitable land by presenting an attractive considered package of development land and Compensatory Improvements. Lichfields have significant experience in the promotion and development of Green Belt land, we are always open to speaking to landowners and developers on any issues that arise.