News
England planning news, March 2021
02 Mar 2021
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Government’s response to the Building Better Commission: Revisions to the NPPF and a draft National Model Design Code
The Government has published its response to the Building Better, Building Beautiful Commission’s report, “Living with Beauty”, which examined how the planning system can deliver better quality design and more ‘beautiful’ building and places. The response sets out where the Government intends to implement the Commission’s recommendations and how and when it expects to do this, with a number of key measures to be taken forward under proposed amendments to the National Planning Policy Framework and by the proposed National Model Design Code.
The Government is consulting on these amendments to the NPPF and is also running a separate consultation seeking views on its draft National Model Design Code and accompanying Guidance Note. The consultations closes on 27 March.
The Secretary of State outlined the direction of travel in a Written Statement, saying:
“For the first time in the modern planning system, beauty and placemaking will be a strategic policy in their own right. This will put an emphasis on granting permission for well-designed buildings and refusing it for poor quality schemes. To ensure local preferences lie at the heart of this, we are asking all local authorities to work with local communities to produce local design codes or guides, setting out the design standards that new buildings will be expected to meet.”
To support the implementation of this high profile set of changes, the Government says it will form an interim ‘Office for Place’, which will look at various options for establishing a new ‘expert design body’ to be launched next year. This will be headed by Nicholas Boys Smith, Chair of the Building Better Commission, and head of the Think Tank, Create Streets.
Proposed changes to the NPPF
The proposed revisions to the NPPF cover a broad range of matters from design and placemaking, plan making, sustainability and climate change, Article 4 Directions, and minor tweaks which the bring the Framework up to date with various legal judgments and ad hoc Statements of National Policy.
Some of the key changes include:
Amendments to paragraph 11d of the Framework’s ‘presumption in favour of sustainable development’, plan-makers will be required to “align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.
To reinforce the Government’s recent changes to Permitted Development rights, it is proposed that the Framework is amended so as to ensure Article 4 Directions are limited to “the smallest geographical area possible”. It has also proposed changes to Policy that would apply only to change of use to residential, with two possible wordings - either that Directions will only be acceptable in “situations where this is essential to avoid wholly unacceptable adverse impacts”. or “where this is necessary in order to protect an interest of national significance”.
This appears to be linked to the proposal to introduce a Class E to Class C3 residential permitted development right, consultation on which closed two days before consultation on the amendments to the NPPF began.
The Framework now also makes reference to the United Nation’s 17 Global Goals for Sustainable Development under paragraph 7. Paragraph 178 on biodiversity been amended so that development primarily aimed at conserving or enhancing biodiversity should be supported. Further to this, improvements to biodiversity in and around other types development should recognise opportunities to“enhance public access to nature”.
On flood risk, draft paragraph 160 (currently paragraph 156) has been amended to clarify the sequential test should take into account all potential sources of flood risk. Further to this, the Flood Risk Vulnerability Classification is now included within the NPPF under Annex 3 (having previously been guidance).
Many of the changes relate to design, ratifying many of the recommendations made by the Building Better Commission. All local planning authorities are now expected to produce design codes, which should be co-produced with communities and reflect local aspirations. The National Design Guide and the National Model Design Code will be used to “guide decisions on applications in the absence of locally-produced guides or codes”.
Significant weight should be given to development that reflects guidance and policies and outstanding or innovative designs that “fit in with the overall form and layout of their surroundings”, where as development that is “not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design”.
Further to this, the NPPF now states that new streets should be tree lined – except where there are “very clear, justifiable and compelling reasons not to”.
For more detailed coverage of the changes, please see our recent blog "Design-led - but a variety of NPPF changes are proposed".
National Model Design Code
Central to the Government’s proposals to raise the standard of design is the proposed National Model Design Code. Forming part of the Government’s Planning Practice Guidance (PPG), the code will sit alongside existing guidance, Design: Tools and Procedures, and the National Design Guide, both introduced in 2019.
The National Model Design Code is intended to provide detailed guidance for local authorities, developers, and communities on the production of design codes, guides and policies to help promote successful design across the built environment. It sets out the framework and core parameters for local authorities to produce local design codes and guidance. The National Model Design Code and National Design Guide may also be a material consideration in planning decisions.
The guidance provides a three-step process to producing codes – analysis, vision, code. The Government is clear that codes should be developed with local communities, while encouraging forms of development that respond positively to the local context of an area. Baseline studies are expected to be prepared in order to understand existing qualities, such as built form, character and appearance, access, connectivity, and patterns of use, alongside other environmental and heritage considerations.
The guidance suggests that LPAs may develop Codes for a range of different scales, from individual sites, defined areas or authority wide. Where developing codes which will cover larger areas, the code encourages the authorities to differentiate codes by area type.
Codes would be expected to include rules for a wide range of parameters with the range and detail depending on local context, but typically covering details such as access, the scale of buildings and plot ratios, treatment of facades, car parking and landscaping.
The Government is seeking to partner with 20 local planning authorities to pilot the use of the new National Model Design Code. This will be led by the interim Office for Place.
MHCLG, Government Response to Living with Beauty report National Planning Policy Framework - Draft text for consultation (January 2021)Written Statement, Design Update (1 February 2021)MHCLG, National Model Design CodeMHCLG, Guidance notes for Design Codes
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Quote of the month |
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As it begins to reopen later this year, we will need an extremely flexible planning system so that we can ensure that small businesses and entrepreneurs can adapt and evolve. We will need a mixed economy, ensuring that there are housing, leisure, shops and restaurants in town and city centres. That is what we are seeking to achieve. We have already put in place, at great speed, a number of significant planning reforms.
The Secretary of State for Housing, Communities and Local Government, Rt Hon Robert Jenrick MP, in MHCLG’s Oral Answers to questions 22 February 2021 |
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Changes to the standard method for local housing need
The Government set out its response to its consultation on the local housing need proposals in “Changes to the current planning system”. According to the response:
“We do not propose to proceed with the specific changes to the standard method that were consulted on. […] Instead we will proceed with a reformed standard method which reflects our commitment to levelling up and enables regeneration and renewal of our urban areas as we recover from the COVID-19 pandemic”.
Lichfields’ summary and analysis of the revised standard method may be found in the blogs “Mangling the mutant: change to the standard method for local housing need” and “Your Official Top 20: The new Standard Method and the cities/urban centres uplift”.
MHCLG, Government response to the local housing need proposals in “Changes to the current planning system”Mangling the mutant: change to the standard method for local housing needYour Official Top 20: The new Standard Method and the cities/urban centres uplift
2020 Housing Delivery Test results published
On 19 January, the Government published the results of its Housing Delivery Test, measuring the delivery of new homes within local authority areas over a three-year period, assessed against the previous estimates of housing need.
Accounting for the impact of the COVID-19 pandemic, the Government has made minor adjustments to this year’s methodology.
“The first national lockdown, announced on 23 March 2020, was an unprecedented event which saw temporary disruption to local authority planning services and the construction sector. We have reflected this in this year’s results, and reduced the ‘homes required’ within the 2019 to 2020 year in the Housing Delivery Test by a month
The 2020 results have revealed that 66% of authorities have passed the ‘test’. However, there has been significant jump in the number of authorities that will now face the “presumption in favour of sustainable development”, with this figure rising from 2% to 17%, amounting to 55 LPAs.
19 authorities are required to apply a 20% buffer to their housing requirement going forward; while 33 LPAs are required to prepare an action plan.
Our analysis is on the Lichfields Think Tank Twitter feed
MHCLG, Housing Delivery Test: 2020 measurement
The Court of Appeal has confirmed three judgments relating to the interpretation of paragraph 11d of the National Planning Policy Framework (NPPF), often referred to as the ‘tilted balance’ in the determination of planning applications.
The combined effect of this is that the potential routes to the tilted balance are confirmed to be reduced from what some considered might have been possible prior to the related High Court judgments.
Paragraph 11 says in its opening line and at paragraphs (c) and (d):
11. Plans and decisions should apply a presumption in favour of sustainable development.
[…]
For decision-taking this means:
(c) approving development proposals that accord with an up-to-date development plan without delay; or
(d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date (footnote 7), granting permission unless:
(i) the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed (footnote 6); or
(ii) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole
[Footnotes]
(6) The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63 in chapter 16); and areas at risk of flooding or coastal change
(7) This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a 5 year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous 3 years. Transitional arrangements for the Housing Delivery Test are set out in Annex 1.
Each case look at different ‘limbs’ of the ‘tilted balance’; paragraph 11(d)(i) in Monkhill, paragraph 11(d)(ii) in Gladman, paragraph 11(d) in Paul Newman New Homes. Paragraph 11(d) and determining whether policies are out-of-date was also considered in the successful challenge Ewans v Mid Suffolk District Council.
Each case is outlined briefly below.
Monkhill Ltd v Secretary of State for Housing, Communities and Local Government & Another
The Court of Appeal has upheld a judgment on the meaning of the paragraph 172 of the NPPF which relates to development in an Area of Outstanding Natural Beauty ("AONB"), 11d (the ‘tilted balance’) of the National Planning Policy Framework (NPPF), concluding that a policy listed in footnote 6 of 11d can disapply the tilted balance; if a policy referred to in footnote 6 shows a clear reason for refusal then one will not progress to apply the considerations set out at paragraph 11(d)(ii).
Waverley Borough Council had refused planning permission, saying that the development would have a harmful "urbanising impact" on the intrinsic character, beauty and openness of the Countryside.
Paragraph 172 of the NPPF requires great weight to be given to conserving and enhancing AONBs. In determining an application, the council had determined that the proposals would "result in significant overall harm to the character and appearance of the area", regarding this impact as a "clear reason" for refusing permission.
The subsequent planning appeal was dismissed, with Mr Justice Holgate refusing a challenge to the Inspector’s decision in the High Court in 2019.
The case rested on whether the weight to be given to conserving AONB under para.172 was capable of providing a clear reason for refusal of planning permission under para.11(d)(i).
LJ Lindblom said at paragraph 28 of the judgment:
“The crucial question in this appeal is whether, on its true construction, the policy in paragraph 11d)i of the NPPF includes the application of the policy in the first part of paragraph 172, because the application of that policy is capable of providing a "clear reason for refusing" planning permission. In my opinion, as Holgate J. held, it does. The sense of the word "provides" in paragraph 11d)i is that the application of the policy in question yields a clear reason for refusal – in the decision-maker's view, as a matter of planning judgment (see paragraphs 51 to 53 and 63 of the judgment of Holgate J.). It is not that the policy itself contains some provision expressed in words one might expect to see in a local planning authority's decision notice. And I do not accept that a policy, when applied, can only provide a "clear reason for [refusal]" if it includes its own self-contained criteria or test, failure of which will be, or will normally be, fatal to the proposal.”
The Judge concluded that the inspector had understood the true meaning of the policy in paragraph 172, correctly applying paragraph 11(d)(i) of the NPPF when exercising the balance of different policies.
Monkhill Ltd v Secretary of State for Housing, Communities and Local Government & Another [2021]
Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government
The Court of Appeal has upheld a High Court judgment that had concluded a design policy (GP.35) was relevant to the principle of development and the determination of an outline planning application; accordingly, in a paragraph 11(d) context there was a relevant development plan policy.
“Since the Inspector and the Judge correctly concluded that policy GP. 35 was not confined in its ambit to matters of detail arising only at the reserved matters stage, the question whether that policy was relevant and how important it was to the determination of the application under consideration were quintessential matters of planning judgment”.
Accordingly, the Inspector was entitled to conclude that the development would breach GP.35 and would not accord with the development plan. GP.35 was a relevant policy; it did not matter that only one relevant policy had been identified:
The Judge was right to find that the second trigger in paragraph 11(d) contains no requirement that the up-to-date basket of the most important policies in the development plan for determining the application should itself also constitute a body of policies sufficient for the determination of the acceptability of the application in principle. Dove J. said no such thing; that was not the issue he had to determine in Wavendon, and his reasoning does not support that construction of paragraph 11d). Nor does the natural reading of the language, taken in context.
Our summary of the September 2019 High Court judgment is here
Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government [2021]
Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government
The Court of Appeal has confirmed “the policy in paragraph 11 [of the NPPF] does not displace or modify the decision-maker's statutory responsibilities. Nor could it – because it is policy, not statute”.
Gladman was refused planning permission by Uttlesford District Council and by Corby Borough Council for two different residential schemes and both were dismissed on appeal.
Gladman Developments Limited challenged the dismissed appeal decisions with respect to the inspectors’ interpretations of paragraph 11(d)(ii) of the National Planning Policy Framework, often referred to as limb two of the so-called ‘tilted balance’.
Mr Justice Holgate refused judicial review and the Court of Appeal has agreed with his approach.
The Court of Appeal noted Monkhill and Paul Newman New Homes and older judgments on appeals relating to “The original version of the policy [i.e. paragraph 14 of the 2012 NPPF], in somewhat different terms”.
Gladman had argued:
“On a straightforward interpretation, without reading any additional words into it, the meaning of the policy is clear. When applying the "tilted balance" under paragraph 11(d)ii, the decision-maker has to assess the proposal against the relevant policies of the NPPF. Local plan policies do not come into that exercise”.
The Senior President of Tribunals, Sir Keith Lindblom, said he could not accept this argument:
“[…] it is implicit in previous discussion of this question – not only in the Planning Court but also in this court and in the Supreme Court – that decision-makers are not legally bound to disregard policies of the development plan when applying the "tilted balance" under paragraph 11d)ii. The reasoning in the two judgments given in the Supreme Court in Hopkins Homes Ltd. did not doubt that development plan policies were potentially relevant to the application of the policy for the "tilted balance" in paragraph 14 of the NPPF issued in 2012”.
The footnote to the ‘first limb’ of paragraph 11(d) – paragraph 11(d)i) – expressly says that when applying the policies in that first limb “The policies referred to are those in this Framework (rather than those in development plans)” (see above).
The judgment notes that, as with the equivalent paragraph in the 2012 NPPF, paragraph 11(d)ii is not qualified by the same clarificatory footnote attached to the other limb that excludes development policies. Therefore paragraph 11(d)ii is much wider and replicates the equivalent provision in the 2012 NPPF.
“A reasonable inference here is that, in the light of the case law [Hopkins Homes Ltd.], the Government saw the need to introduce this qualification to paragraph 11d)i, but no need to do so for paragraph 11d)ii. Had it wanted to exclude development plan policy from the ambit of paragraph 11d)ii, it could easily have done that. But it did not”.
It was also concluded that restricting the scope of paragraph 11d)ii) to exclude development plans would be incompatible with the role and scope of the NPPF. Furthermore, there are other policies in the NPPF that refer to the role and content of development plan policies, notably regarding neighbourhood plans (paragraph 14).
“Thus the policies of the development plan will often inform the balancing exercise required under paragraph 11d)ii. Holgate J. came to this conclusion (in paragraph 102 of his judgment), and in my view he was right”.
It is for the decision maker to judge whether and how policies of the plan are taken into account in the application of the policy comprising paragraph 11(d)ii. With regard to whether combined or separate assessments against policy the Court of Appeal concluded that “the decision-maker is not obliged to combine in a single exercise the paragraph 11(d)ii assessment with the assessment required to discharge the duty in section 38(6) . In principle, however, he lawfully may”. If the decision-maker takes this approach, then they must be mindful of the primacy of the development plan.
Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021]
Ewans v Mid Suffolk District Council
In another recent case regarding paragraph 11(d) R. (on the application of Ewans) v Mid Suffolk DC (not available on bailli.org), the judicial review claim by a local objector was dismissed.
There was a five year housing land supply and the proposed development was considered to be a departure from the development plan, but the planning officer had compared development plan policies with the NPPF and concluded that the policies were out of date and the tilted balance at paragraph 11(d)(ii) of the NPPF should be applied.
Mr Justice Holgate found that “out-of-date” in paragraph 11(d) should be interpreted with reference to its natural and ordinary meaning and determining that policies are out of date is a matter of planning judgement rather than legal interpretation. The weight to be given to the development plan policies and to emerging policies had been assessed appropriately.
Provisions for remote committee meetings set to expire in May
As it currently stands, legislation that enables local authorities to continue to meet and vote remotely is set to end on 7 May 2021. The provisions were introduced last year under the Coronavirus Act 2020 to aid the continuation of council’s duties in response to the Coronavirus pandemic.
In response to a Written Question on the matter of whether this will be extended beyond the current cut off point, and whether the Government has considered the merits of making the measures permanent, Parliamentary Under-Secretary for Housing, Communities and Local Government, Luke Hall, said that extending the facility for all local authorities to continue to meet remotely or in hybrid form after 7 May 2021 would require primary legislation.
“We have received representations from local authorities and sector representative organisations making the case for the continuation of remote meetings beyond 7 May 2021 and we are carefully considering next steps in this area, including representations to facilitate remote or hybrid meetings permanently”.
At the end of February, The Association of Democratic Services Officers (ADSO) and Lawyers in Local Government (LLG) announced that they had instructed counsel to issue proceedings in the High Court to seek a declaratory judgment to enable local authority remote meetings to take place within existing legislation after 6 May 2021.
According to the ADSO website, the ADSO and LLG have been lobbying the SoS to change primary legislation to enable local authority remote meetings to take place beyond the current statutory deadline.
“A pre-action letter has been served on the Secretary of State giving him the opportunity to respond to our proposals. Once this notice period expires, if there is no material change to the present circumstances, we will submit our claim to the Court”.
UK Parliament, Written Questions and Answers: Local Government: Meetings UIN 152529 and UIN 152530Association of Democratic Services Officers, LLG and ADSO Serve Pre-Action Letter on Secretary of State
The Government has announced that it is to introduce a levy that will be applied when developers seek planning permission to develop defined types of high rise building in England (only).
The levy is to help finance the funding that will support the cost of replacing unsafe cladding. It was announced alongside the Government’s funding plans for cladding remediation in England, which vary according to matters including the height of the building.
According to the SoS, the Gateway 2 Developer Levy will be introduced through the forthcoming Building Safety Bill "helping to ensure industry takes a collective responsibility for historic building safety defects".
According to the Explanatory Notes to the draft Building Safety Bill, Gateway 2 is after planning permission and before construction, with further details to be set out in regulations.
In addition to the levy, a new tax “for the UK residential property development sector” will be introduced in 2022.
“This will raise at least £2 billion over a decade to help to pay for cladding remediation costs. The tax will ensure that the largest property developers make a fair contribution to the remediation programme in relation to the money they make from residential property, reflecting the benefit that they will derive from restoring confidence to the UK housing market. The Government will consult on the policy design in due course”.
A subsequent written answer from the Treasury says the policy will be designed “to ensure the tax is proportionate and reflects developers’ ability to pay”.
The same written answer confirmed that the tax will apply UK wide.
“The tax will help fund a large spending package, and the devolved administrations will receive additional funding through the Barnett formula at future fiscal events and spending reviews, except where new departmental spending is funded by an England-only levy”.
The Budget on 3 March is likely to include more details.
UK Parliament, Building Safety debate, 10 February 2021UK Parliament, Written Answer: Property Development: Scotland, 19 February 2021Draft Building Safety Bill
In its response to the standard method for calculating local housing need element of the proposals in “Changes to the current planning system”, the Government provided an update on other elements of the consultation:
“We are carefully considering the responses to the other proposed policy changes covered in this consultation. In doing so, we will assess whether the small sites threshold and extending Permission in Principle are best addressed in the context of our proposals for wider reform. We will be responding to proposals to secure First Homes through developer contributions in the short term in the New Year”.
The Environment Bill commenced report stage in the House of Commons on 26 January. On the same day the Environment Minister secured a carry over motion for the Bill saying:
“Even if the parliamentary passage of the Bill will take place in this session and the next, this carry-over motion is absolutely essential to ensuring this flagship piece of legislation does not fall at the end of this session. The Environment Bill will resume early in the second session—I make that absolutely clear—with Royal Assent by autumn. One could say that by spreading it over two days, with a space in between, we will get two bites at this really important environmental cherry”.
During the Report Stage day 1 debate that followed, the Minister said:
“We will continue to work in the gap before the second day of the Report stage and we will achieve Royal Assent before COP26”.
UK Parliament, Environment Bill
The Government has published its response to the consultation on the Future Homes Standard, which confirms the position regarding local planning authorities’ role in setting energy efficiency requirements for new homes that go beyond the minimum standards set through the Building Regulations.
Local plans may set such policies at present, but there has been confusion arising from a pending 2015 amendment to the Planning and Energy Act 2008 that would remove this ability and a 2015 Written Ministerial Statement stipulating limitations on the energy efficiency standards that may be set.
The Future Homes Standard consultation proposed that a way of clarifying the role of LPAs would be to amend the Planning and Energy Act 2008 alongside a future uplift in Part L standards so that in future, developers will be required to build to a single higher standard that is applied consistently across England.
The response explains that there will be no change in the short term, with planning reforms set to confirm the long term position:
To provide some certainty in the immediate term, the Government will not amend the Planning and Energy Act 2008, which means that local planning authorities will retain powers to set local energy efficiency standards for new homes.
[..] The white paper indicated that while development management policies would focus on identifying areas for development and protection, they would be set nationally. Further, as we move to ever higher levels of energy efficiency standards for new homes with the 2021 Part L uplift and Future Homes Standard, it is less likely that local authorities will need to set local energy efficiency standards in order to achieve our shared net zero goal.
Many local authorities around the country will be holding local elections on Thursday 6 May 2021, this will also include many of those which had been postponed in May 2020.
The Local Government Association has stated that the pre-election period is set to begin no later than 22 March 2021, with no political announcements or decisions permitted to be made during this period.
The legislation requiring that homes delivered via permitted development rights meet space standards will come into force on 6 April 2021.
Please see the Lichfields November 2020 England Planning News for more details.
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The Lichfields perspective |
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Following on from the introduction of Class E at the end of the summer, the consultation on the proposed Class E to Class C3 permitted development rights during the Winter, the changes to the standard method and the current proposed changes to the NPPF all show that prior to wholesale reform of the planning system there is no sign of seismic changes to the current system abating. Albeit some of the changes might not be as anticipated – the changes to the standard method taken forward are significantly different to those consulted on.
Ian Kettlewell, Planning Director |
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Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116