The National Planning Policy Framework - Communities and Local Government Committee Contents


5  The balance of the draft NPPF

The presumption in favour of sustainable development

69. The introduction of the presumption in favour of sustainable development is a core principle of the NPPF and has attracted widely differing views. The first chapter of the NPPF sets out the Government's determination that "the planning system does everything it can to support sustainable economic growth"[124] and that "planning must operate to encourage growth and not act as impediment."[125] As we have noted it describes the presumption as "a golden thread running through both plan making and decision taking"[126] and it is mentioned again in twelve other sections of the NPPF.[127]

70. Adrian Penfold told us that the presumption was not as radical a change as some believed it to be, but was rather a clarification of current practice.[128] During the NPPF debate in the House in October 2011 Andrew Stunell MP, Parliamentary Under Secretary of State, said that it strengthened existing policy, which he quoted from a 1949 planning circular:

    In cases where no serious issue is involved, and where the authority can produce no sufficient reason for refusal, the presumption should be in favour of granting the application.

    Mr Stunell continued:

    Things have moved on since then, and we have a plan-led system, but the presumption in favour of sustainable development that we propose will strengthen that plan-led system, not undermine it.[129]

71. DCLG's NPPF Myth-Buster includes as one of its 'myths', that "the presumption in favour of sustainable development will mean that every application has to be accepted" and responds:

    The presumption is not a green light for development. All proposals will need to demonstrate their sustainability and be in line with the strict protections in the draft Framework. Strong environmental safeguards remain as part of the planning system, including protecting communities and the environment from unacceptable proposals. The presumption is principally about good plan making. Once a Local Plan is put in place, local decisions should be made in line with it.[130]

72. Some supporters of the presumption believed that the NPPF did indeed highlight a shift in policy, by making planning more receptive to development. Dr Adam Marshall, from the British Chambers of Commerce (BCC), welcomed the change in emphasis:

    I think businesses want the system to get back to a positive role. They feel that the original purpose of the 1947 Act is no longer at the heart of things. They feel the system as it stands now is not about planning positively for where things go and where development should be allowed, but rather it has become a tool to object, or for the culture of no, as I like to call it, to rear its ugly head.[131]

However, other witnesses told us that the presumption fundamentally unbalanced the NPPF, skewing it towards the achievement of economic growth, to the detriment of the social and environmental factors.[132] Sir Simon Jenkins, Chair of the National Trust, thought that "anybody reading this document cannot come to the conclusion it is a balanced document. It is clearly directed on one very firm motivation".[133]

73. The draft NPPF initially presents the three components of sustainable development—economic, social and environmental—as complementary and equal,[134] but later in the document, the focus seems to shift overwhelmingly to economic factors in planning decisions:

    Planning should proactively drive and support the development that this country needs. Every effort should be made to identify and meet the housing, business, and other development needs of this area, and respond positively to wider opportunities for growth. Decision-takers at every level should assume that the default answer to development proposals is "yes", except where this would compromise the key sustainable development principles set out in this Framework.[135]

74. The NPPF Impact Assessment reinforces this apparent shift in favour of economic factors, with its foreword stating that the presumption is a new requirement:

    At the heart of national policy will be the new presumption in favour of sustainable development, which sends a strong signal to all involved in the planning process to plan positively for appropriate new development, so that plan-making and development management are proactive in support of economic growth rather than acting as barriers.[136]

RTPI commented that the terms 'sustainable development' and 'sustainable economic growth' are unfortunately conflated throughout the document, not least in the foreword where it is stated that "development means growth". The Chartered Institution of Water and Environmental Management (CIWEM) argued that, contrary to the Minister's definition, "development does not necessarily mean growth" and that "there is more to development than simply growth"[137] and went on to add:

    It is a concern that the Government appears to make a distinction between 'sustainable economy' and 'sustainable economic growth'. There is a clear tension between economic growth and sustainable development in this document and it does not provide adequate guidance on either. The aspiration towards 'growth' means that creative and innovative thinking is marginalised and a model of expansion is resorted to; this is instead of looking at renewal and more innovative and smarter ways of development business to secure a firm economy.[138]

75. We agree with the Environmental Audit Committee that local planning authorities "need an NPPF which does not push them to regard [the] economic dimension as predominant", and we consider that the NPPF, as currently drafted, does run this risk. We consider that it is reasonable and practical for the NPPF to have as an overarching principle a presumption in favour of sustainable development. However, the draft NPPF conflates the term 'sustainable development' and 'sustainable economic growth', thereby making the document unbalanced; the two terms are distinct and should be kept separate in the Framework.

Default 'yes' to development proposals

76. Core planning principles set out in the draft NPPF include the following:

    decision-takers at every level should assume that the default answer to development proposals is 'yes', except where this would compromise the key sustainable development principles set out in this Framework.[139]

John Rhodes, of planning consultancy Quod, supported this point:

    [Planning] exists not as an industry in itself but to deliver the homes, communities, places and environment we want to see. One of the things it says is, 'when you are preparing your plans, presume that you will meet your needs. If you are considering an application and you cannot decide whether it is good or bad, it is probably a development that ought to be allowed, particularly in this economic climate.'[140]

CIWEM outlined the potential contradiction between the NPPF both supporting a plan-led approach, by supporting Local Plans, and supporting the default 'yes' position. While it welcomed the first principle that planning should be plan-led—with succinct, up-to-date Local Plans providing the framework within which decisions on planning applications are made—it criticised the second principle:

    Sadly, one of the worse statements in this Framework is the second principle where it says 'decision takers at every level should assume that the default answer to development proposals is yes...' This is a very dangerous assumption and this principle is open to all sorts of misinterpretations and potential abuse.[141]

RTPI also highlighted the concerns of the 'default yes' policy:

    The popular concern that the presumption in favour of sustainable development is all about pushing unwanted schemes through the system is not helped by the Government's stated expectation of 'a system where the default answer to development is "yes".' However, as the Government has stated publicly that while good, sustainable development should be approved and harmful, unsustainable development should not, this sentiment should be clearly reflected in the NPPF, and with reference to local policy as well as to the national policies of the Framework.[142]

77. The sentence "decision-takers at every level should assume that the default answer to development proposals is 'yes', except where this would compromise the key sustainable development principles set out in this Framework" should be removed from the NPPF. It is weighted too far towards a single interest that the planning system must address, and is inconsistent with both the plan-led system and the more measured presumption in favour of sustainable development.

'Presumption in favour of the Local Plan'

78. As already noted, the importance of the Local Plan to the planning process was central to many of the submissions we received. An adopted Local Plan offers the largest practical amount of certainty to shape decisions on planning applications, and thereby minimises the need for planning appeals. RTPI wrote that "if Local Plan policies cannot be used to justify a negative response [to a development proposal], there is little point in having them".[143] Tony Burton of Civic Voice told us:

    Sustainable development is a very legitimate purpose of the planning system. We do not think you need a presumption in favour of it; we think it is a purpose of the planning system, which you deliver differently according to local circumstances, by having a presumption in favour of the development plan.[144]

He thought that the presumption in favour of sustainable development effectively brought in a double presumption in favour of development:

    I don't see why there is a double presumption in favour of development—you have a presumption in favour of sustainable development that is locked in through a presumption in favour of the development plan. We should just stick with a presumption in favour of the development plan, which is the current situation.[145]

Shaun Spiers agreed, saying that CPRE "would prefer a presumption in favour of the plan".[146]

79. The presumption in favour of sustainable development is compatible with the presumption in favour of the Local Plan, provided that the presumption in favour of sustainable development is recognised as a principle and a direction of travel, rather than as the overriding consideration or a detailed yardstick for making day to day planning decisions. The Minister, Greg Clark, reassured us that "the principal default is in favour of the Local Plan".[147]

80. It is sensible that planning should support a presumption in favour of sustainable development as a strategic purpose, but that presumption is not precise enough to be used as a tool for decision making. Where there is an adopted Local Plan in place, the Local Plan should be the starting point for planning decisions. Local Plans should be based on robust evidence, transparent, capable of providing the development needed in an area, reflective of local circumstances, and offering as much certainty as planning reasonably can. The presumption in favour of sustainable development should be redefined as 'a presumption in favour of sustainable development consistent with the Local Plan.' In our view, this will not only firmly anchor sustainable development to local circumstances, but will also provide a spur to local authorities to prepare their Local Plans. We consider Local Plans in more detail in the next chapter.

'Significantly and demonstrably'

81. The phrase "significantly and demonstrably" appears four times in the draft NPPF. Within the section on the presumption in favour of sustainable development, and elsewhere in the document—in the sections on Local Plans, increasing the supply of housing, and protecting the natural environment—it is stressed that Local Plans should be prepared on the basis that objectively assessed development needs should be met,

    unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.[148]

Within the section on the presumption in favour of sustainable development, the Framework states that this approach should be applied when deciding applications, not only those in accordance with adopted Local Plans, but where a plan is absent, silent, indeterminate, or out of date.[149] We considered what effect the test would have and whether it was needed.

82. John Slaughter, Director of External Affairs at the Home Builders Federation, said that the phrase had a long tradition in planning law, dating from the Town and Country Planning Act 1971.[150] Ian Fletcher, Director of Real Estate at the British Property Federation, thought that the phrase constituted a protection against inappropriate development:

    [The NPPF] is not supporting all development, if you can prove there is harm being created in allowing development through the protections significantly and demonstrably. There already is something in there that basically says harm trumps all.[151]

He went on to describe 'significant' as being "not insignificant in terms of putting up an objection."[152] The National Trust was critical of the phrase, saying that it was not properly defined and that

    to refer to a definition of 'significance' being 'not insignificant'—we are [in] tautological realms here—may not prove that helpful in terms of giving a clear steer. Certainly it would be left to lawyers to resolve in many cases. [...] It shifts the burden of proof quite clearly on to planning officers and away from developers. You are being forced to prove that there is harm, as opposed to the other way around. At a time when local authority planning officers and planning services are reducing in size, that feasibly is a further shift towards the presumption in favour of development per se.[153]

83. Stephen Joseph, from Campaign for Better Transport, considered that the detriment test of 'significantly and demonstrably' would carry undue weight because

    you can put in nice words about green belt or heritage, but such wording ['significantly and demonstrably'... ], will set a very high bar against which any other consideration in short-term economic development can be judged.[154]

CPRE was concerned that the term 'significantly and demonstrably' would set a very high bar, because of the double presumption influencing both Local Plans and decisions:

    if the Local Plan has to be in conformity with the NPPF—we think the NPPF is weighted in favour of development—a local authority must show that the adverse impacts of development significantly and demonstrably outweigh the beneficial impacts, and so on—then the scope for the local authority to take the decisions that we, or they, might want to take is very severely constrained.[155]

84. John Rhodes—a member of the Practitioners' Advisory Group (PAG)—said that the phrase 'significantly and demonstrably' was not the practitioners' first preference. The original PAG's wording of the relevant section reads:

    This presumption should apply unless to do so would cause significant harm to the objectives, principles and policies set out in this National Planning Policy Framework.[156]

85. When asked about the phrase 'significantly and demonstrably', Greg Clark said that he was not defending the existing draft, and would "appreciate the Committee's considered view on this."[157] He explained why the phrase had been chosen:

    There are two separate words. In terms of 'significantly', it seems to me that if you want to avoid a very legalistic comparison, 'Is the balance on a particular issue one gram one way, or one the other?' The idea that things should be significant enough to be noticed is reasonable. 'Demonstrably' basically implied that you should not just assert something; you should be able to demonstrate it and you should have evidence for it. Some people have said that those words are pretty well understood, certainly in legal circles, but possibly not in lay circles. There have been some suggestions for other forms of words. The policy intent behind it is to suggest that people provide evidence—we are not getting into counting angels on pinheads.[158]

We are pleased that the Minister is open to suggestions on the term 'significantly and demonstrably'. In our view, the effect of the current draft would be that arguments against development would carry remarkably little weight in plan preparation. Local authorities would have to demonstrate the substantial harm that a development would cause before it could be resisted. To avoid semantic and legal ambiguity, the drafting of this specific part of the Framework needs to be precise and clear. The original PAG's wording offers a more balanced approach to planning.

86. The phrase 'significantly and demonstrably' should be removed throughout the document; we prefer the simpler test of significance. Indeed, the alternative wording from the Practitioners Advisory Group's version—"this presumption should apply unless to do so would cause significant harm to the objective, principles and policies set out in this National Planning Policy Framework"encapsulates, in our minds, a clearer, more balanced approach to the presumption in favour of sustainable development. Such new wording should also place the burden of proof of the presumption not causing significant harm onto the developer or applicant, not on the planning authority.

Viability

87. Passages of the draft NPPF referring to the 'viability' of development raised controversy, specifically:

    To enable a plan to be deliverable, the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened. To ensure viability, the costs of any requirements likely to be applied to development, such as requirements for affordable housing, local standards, infrastructure contributions or other requirements should, when taking account of the normal cost of development and on-site mitigation, provide acceptable returns to a willing land owner and willing developer to enable the development to be deliverable.[159]

A further point is made later in the Framework:

    Local planning authorities should avoid unnecessary conditions or obligations, particularly when this would undermine the viability of development proposals.[160]

88. The County Councils Network (CCN) maintained that the draft NPPF

    appears solely to address the question of whether development is viable for the developer. CCN would prefer a symmetrical definition of viability, where viability is also called into question if a development would impose disproportionate capital or revenue costs on the public purse.[161]

Oxford City Council stated that "it should not be acceptable to approve schemes which are not sustainable on the grounds that, to make them sustainable would, at the same time, render them unviable."[162] The Local Government Association argued that "the final NPPF needs to make clear that sustainability must always trump the need to reduce costs to ensure viability, not the other way round."[163]

89. We considered whether there was a danger that local authorities might have to approve environmentally or socially harmful applications because they could not impose improvements that would render them commercially unviable. Mike Holmes, President of the Planning Officers Society, pointed out that:

    The worst-case scenario for the local community is that they get the development but there is not enough value coming forward from the development to mitigate it in terms of roads and all the other facilities that are required.[164]

The Campaign to Protect Rural England (CPRE) expressed concern that the language in the draft Framework on viability would lead to developers arguing that they should not be required to deliver as much affordable housing in the future, because it is not viable for them to do so.[165] Shelter stated that "this effective exemption for developers" would put local authorities in a weak negotiating position when trying to secure affordable housing.[166]

90. When asked whether local authorities will have to approve environmentally or socially-harmful applications because they could not impose improvements that would make them commercially unviable, the Minister responded:

    That is certainly not the intention. They specifically, in my view, should not approve developments that would be significantly environmentally damaging.[167]

Once again, we noted that the Minister was put in the position of having to provide reassurance over important issues because of the ambiguity of the draft NPPF. We are grateful for this reassurance and clarification, and we share his view. We consider that the viability provisions as expressed in the draft NPPF could be used by developers to attempt to drive down their costs, creating an unnecessary war of attrition between developers and authorities.

91. From the definition of 'viability' in the draft NPPF, many have concluded, which we fully understand, that the NPPF would allow unsustainable development to go ahead if measures to make it sustainable were also deemed to make it unviable for the developer. We welcomed the Minister's clarification and we recommend that the NPPF make it clear that calculations of viability presuppose requirements to provide infrastructure and other measures necessary to the development, not simply returns deemed acceptable by the developer.

Illustrating the problem of balance: transport in the NPPF

92. Among the core planning principles in the draft Framework is the principle that "planning policies and decisions should actively manage patterns of growth to make the fullest use of public transport, walking and cycling, and focus significant development in locations which can be made sustainable."[168] Transport policies could exert a particular influence on the prospects for more development, because anticipation of pressure on local transport infrastructure is one of the commonest causes of local opposition to development.[169]

93. However, the Campaign for Better Transport (CBT) argued that "in transport terms, the draft NPPF moves firmly away from sustainable development. It will allow more sprawl and congestion."[170] Particular policies—or rather the removal of policies—which CBT and others argued would contribute to sprawl are the exclusion of offices from the 'town centre first' policy, the removal of the national indicative minimum housing density policy, the abolition of national car parking standards (which set maximum spaces per dwelling), and the introduction of local discretion in the application of travel plans and assessments.[171]

94. The text of the Framework's transport section has given rise to some concern in its phrasing. The section states that encouragement should be given to solutions which support reductions in greenhouse gas emissions and reduce congestion, but only "where practical"; the planning system should support a pattern of development which facilitates the use of sustainable modes of transport, but only "where reasonable to do so".[172] The draft NPPF states that

    development should not be prevented or refused on transport grounds unless the residual impacts of development are severe, and the need to encourage increased delivery of homes and sustainable economic development should be taken into account.[173]

Sustainable transport campaigning groups argued that this is too demanding a test for rejection of applications on transport grounds.[174] CPRE stated that the way this test is presented

    would, for example, make it near impossible to use land use planning as a tool to reduce carbon emissions from transport. The emissions from individual unsustainable planning applications would always be a tiny proportion of national emissions and so could not be held to be 'severe'.[175]

95. We consider that the transport section of the NPPF is a good illustration of lack of balance in the document as currently drafted; by the use of such phrases as 'where reasonable', and 'where practical', it gives the impression that the 'sustainable' part of 'sustainable development' can be jettisoned almost at will. Local authorities should be able to expect that they can reject or enforce changes to development on transport or environmental grounds, not just where the impact would be 'severe', but where it would run counter to local priorities and wishes, or where an individual development might contribute to a 'severe' cumulative impact caused by several developments. This example serves to illustrate the difficulties local authorities may have in making a determination on particular applications.



124   Draft NPPF. para 13 Back

125   As above Back

126   Draft NPPF, para 14 Back

127   Draft NPPF, paras 20, 26, 48, 51, 55, 62, 66, 74, 153, 165, 169, 170. Back

128   Ev 157 Back

129   HC Deb, 20 October 2011, col 1168 Back

130   DCLG, National Planning Policy Framework: Myth-Buster, 8 September 2011 Back

131   Q 5 Back

132   Qq 248, 249, 229, 251 Back

133   Q 85 Back

134   Draft NPPF, para 11 Back

135   Draft NPPF, para 19 Back

136   NPPF Impact Assessment, foreword Back

137   Ev 160 Back

138   Ev 161 Back

139   Draft NPPF, para 19 Back

140   Qq 5, 8 Back

141   Ev 161 Back

142   Ev 153 Back

143   Ev 154 Back

144   Q 192 Back

145   Q 223 Back

146   Q 265 Back

147   Q 308 Back

148   Draft NPPF, paras 14, 20, 110 and 165 Back

149   Draft NPPF, para 14 Back

150   Q 98 Back

151   Q 92 Back

152   Q 98 Back

153   Q 99 Back

154   Q 256 Back

155   Q 238 Back

156   Practitioners Advisory Group's draft NPPF, May 2011, p 6 Back

157   Q 237 Back

158   As above Back

159   Draft NPPF, para 39 Back

160   Draft NPPF, para 70 Back

161   Ev w158 Back

162   Ev w107 Back

163   Ev 116 Back

164   Q 145 Back

165   Ev 143 Back

166   Ev 149 Back

167   Q 328 Back

168   Draft NPPF, para 19 Back

169   Q 247 Back

170   Ev 144 Back

171   Q 228; Ev 145 Back

172   Draft NPPF, para 86 Back

173   Ev 146, Draft NPPF, para 86 Back

174   Ev 146 [The Campaign for Better Transport]; Ev w40 [Sustrans]; Ev w214 [Institution of Civil Engineers] Back

175   Ev 142 Back


 
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Prepared 21 December 2011