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.
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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