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06/04/2018

Legal landscape: Redefining the NPPF 

Dictionary definition of planning

The draft revised NPPF has quietly redefined a number of planning concepts, finds Paul Wakefield. What are the likely implications?

Last month the government published a long-awaited revised draft version of the National Planning Policy Framework (NPPF). The new document consolidates a series of proposals made over the last two-and-a-half years, which have now been included in various supporting documents.

Now, in the middle of a consultation period, due to end in May, planners across the UK are waiting to see what the final version looks like when it is published later this year. 

Whilst many of the changes proposed in the draft NPPF were expected, there have been several notable alterations contained within the definitions in Annex 2, which will be particularly significant to planners, developers and local authorities. 

The revised draft highlighted a change to the definition of affordable housing, with a big shift towards housing for sale, rather than for rent. Furthermore, the definitions of ‘social rented housing’ and ‘affordable rented housing’ have been merged in to one definition of ‘affordable housing for rent’ which also encompass ‘Build to Rent’ schemes. 

Similarly, where it was previously stipulated that “low-cost market housing may not be considered as affordable housing for planning purposes” now starter homes and so-called ‘discounted market sales housing’ are not just included, but separately defined. Equally, the catch-all description of “other affordable routes to home ownership” includes shared ownership, relevant equity loans and “other low-cost homes for sale and rent to buy”. 

"Whilst this shift may well be welcomed by developers, the move away from affordable rental properties to starter homes is unlikely to provide comfort to those currently without the means to buy a property"

Whilst this shift may well be welcomed by developers, the move away from affordable rental properties to starter homes is unlikely to provide comfort to those currently without the means to buy a property who are reliant on diminishing supplies of social rented housing. It also represents a challenge to existing registered providers who face the prospect of fewer rental properties being provided by major housebuilders.

As with affordable housing, the definition of ‘deliverable’ has also been amended in the new draft document. For sites to be considered as deliverable under the proposed changes, they “should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years”, echoing the former footnote 11. 

The new definition also states that “small sites, and sites with detailed planning permission, should be considered deliverable until permission expires unless there is clear evidence that homes will not be delivered within five years.”  This represents a subtle shift from the old footnote 11, moving towards a specific reference to small sites, and sites with detailed planning permission rather than “sites with planning permission”.

The new definition of ‘deliverable’ also stipulates that sites with outline planning permission or permission in principle, which are allocated in the development plan or identified on a brownfield register, should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years. This in turn reverses the previous position that a site with planning permission is presumed to be deliverable, unless proven otherwise.

”There may well be several local authorities around the country who suddenly find that they no longer have a five-year housing supply”

The effects of this re-definition could be widespread and local authorities will no longer be able to automatically conclude that sites with an outline permission are ‘deliverable’. With this in mind, there may well be several local authorities around the country who suddenly find that they no longer have a five-year housing supply.
The draft revised framework also attempts to give some clarity to planning obligations. The proposed change to the definition of’ “planning obligation’ removes the reference to a ‘legally enforceable obligation’ and instead replaces it with a ‘legal agreement’.

Whilst both definitions continue to refer to section 106 of the Town and Country Planning Act 1990, the express reference to an ‘agreement’ would appear to exclude the use of unilateral undertakings, which runs contrary to the express wording of section 106 (1). This further muddies the waters when it comes to whether local planning authorities can and should seek unilateral undertakings to secure mitigation for development.

It is, of course, important to remember that the document is currently out for consultation, and the new definitions are not set in stone. However, whether the updated draft will be enough to drastically change the current planning landscape, increase housing affordability, and achieve the pledge of a million new homes by 2022, remains to be seen. The hope is that the new policy will bring much-needed clarity – although, at present, some may say that the revised document merely adds to the confusion.

Paul Wakefield is an associate partner in the planning team at law firm, Shakespeare Martineau

Photo | iStock

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