Published: 07 March 2018
Area of Law: Planning, Planning Consultancy
NPPF 2.0 - Defining changes
“What’s in a name? That which we call a rose by any other name would smell as sweet.”
So opined Shakespeare in Romeo and Juliet. With arguably some of the key changes in this week’s consultation draft National Planning Policy Framework (NPPF) being contained within the definitions in Annex 2, it is clear that Shakespeare wasn’t talking about planning policy.
Of the changes proposed in the NPPF consultation draft, the following three are of particular significance:
The big shift here is a clear push towards housing for sale rather than rent. The definitions of “Social rented housing” and “Affordable rented housing” have gone to be replaced by “Affordable housing for rent”. Similarly, where previously it was stipulated that “low cost market housing may not be considered as affordable housing for planning purposes” now “Starter homes” and “Discounted market sales housing” are not just included, but separately defined. Similarly, the catch all description of “Other affordable routes to home ownership” includes “shared ownership, relevant equity loans, other low cost homes for sale and rent to buy”.
What does this mean?
Whilst this is reflective of government policy in the Osbourne and Cameron years, and I suspect will be welcomed by developers, the shift away from affordable rental properties to starter homes is unlikely to provide comfort for those people currently without the means to afford to buy a property 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.
Under the proposed changes, to be considered, deliverable sites “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” which echoes the old footnote 11.
However, the new definition continues 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 in the old footnote 11, because it specifically refers to small sites and sites with detailed planning permission rather than “sites with planning permission”.
The new definition then proceeds to state that “Sites with outline planning permission, permission in principle, 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.”
What does this mean?
This appears to change the position set out by the Court of Appeal in St Modwen Developments Ltd v Secretary of State for Communities and Local Government and means that local authorities will no longer be able to automatically conclude that sites with an outline permission are “deliverable”. I suspect this will mean there are a few local authorities who suddenly find they no longer have a five year housing land supply.
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”.
What does this mean?
Whilst both definitions continue to refer to section 106 of the Town and Country Planning Act 1990, the express reference to “agreement” would appear to exclude the use of unilateral undertakings, which runs contrary to the express wording of section 106 (1). This muddies the waters as to whether local planning authorities can and should seek unilateral undertakings as a means to secure mitigation for development.
What should you be doing now?
It is, of course, important to remember that the document is currently out for consultation, and therefore the definitions may yet change.
If you are likely to be affected by the proposed measures then I’d strongly encourage you to engage with the consultation process. The consultation closes at 23.45 on 10 May 2018 and can be accessed here.
If you would like to discuss these issues in more detail, please do not hesitate to contact a member of the planning team.