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

6  Local Plans

Statutory status of Local Plans

96. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides the statutory basis for Local Plans:

    If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.[176]

97. The explanation of the presumption in favour of sustainable development in the draft NPPF includes the first reference to Local Plans, and illustrates the way in which the NPPF guidance will impact on the operation of the statute:

    Local planning authorities should:

    Prepare Local Plans on the basis that objectively assessed development needs should be met, and with sufficient flexibility to respond to rapid shifts in demand or other economic changes.[177]

Local Plans are crucial to the planning process, which the reference above highlights. Under the section 'Core Planning Principles', the draft NPPF advises that:

    Planning should be genuinely plan-led, with succinct Local Plans setting out a positive long-term vision for an area. These plans should be kept up to date and should provide a practical framework within which decisions on planning applications can be made with a high degree of certainty and efficiency.[178]

98. Some witnesses applauded the positive approach to Local Plans in the NPPF. Paul Cheshire welcomed the NPPF's desire to "push people and Local Plan making into a position where they will have to look more favourably at development and allow enough land to come forward for development, and enough space and flexibility within the system."[179] Stephen Wright, of the John Lewis Partnership, agreed:

    hopefully this more positive attitude towards planning will encourage local authorities to have a plan and to plan for the right development in the right places. It is entirely localist, to my mind.[180]

99. John Rhodes, a member of the Practitioners Advisory Group, argued that the statutory status of Local Plans had been lost in the debate surrounding the NPPF:

    One of the things that I think the public debate has missed recently is the importance of the Local Plan in this process. If there was one change between the advisory group draft and the Government's draft that I do regret it is that I don't think the latter is as clear as it might be on the role of the Local Plan. [...] Section 38(6) of the 2004 Act tells you that it you are contrary to the plan you should normally be refused planning permission. This does not change that at all.[181]

The NPPF does not give enough prominence to local plans. For example, the Framework states that the 'default yes' should apply "except where this would compromise the key sustainable development principles set out in this Framework."[182] We believe that the 'default yes' should be deleted and that the Framework should reiterate the legal provision in section 38(6) of the 2004 Act, which provides sufficient clarity.

100. In a debate on the NPPF in the House in October 2011, the Minister, Greg Clark, addressed the supremacy of Local Plans:

    The first objective is to make the Local Plan central to what happens and to transfer power to local communities. That has to be crucial.[183]

In September 2011, he also gave an assurance that "the primacy of the Local Plan remains."[184] When we questioned Mr Clark about the default 'yes' to development section of the NPPF, he expanded his reassurances about Local Plans:

    As far as the default yes goes, the principal default is in favour of the Local Plan and it is very important that we took a decision there. When the Localism Bill was going through, there was the opportunity to change the basis of planning law, Section 38(6) of the 2004 Act, and we didn't do it. It follows from everything I have said so far that the most important basis for a decision is the Local Plan. I want to see more planning. We have too little planning and too much development control.[185]

This point reinforces our recommendation that the presumption in favour of sustainable development should be replaced by a presumption in favour of sustainable development that is consistent with the Local Plan.

101. In the previous chapter we concluded that the presumption in favour of sustainable development should be redefined as 'a presumption in favour of sustainable development consistent with the Local Plan'. We recommend that the NPPF unambiguously reflect the statutory supremacy of Local Plans, in accordance with the 2004 Planning Act. The prominence given to the presumption in favour of sustainable development risks presenting it as a decision-making mechanism on a par with, or superior to, the Local Plan. In view of the fact that the Local Plan is a keystone of the planning edifice, it is crucial that local authorities have Local Plans in place as soon as possible. We will discuss further the importance of local authorities having Local Plans in place in Chapter 7.

Absent, silent, out-of-date or indeterminate Local Plans

102. The NPPF advises that when the Local Plan is absent, silent, out-of-date or indeterminate, the NPPF itself becomes the default plan. Some witnesses welcomed this approach,[186] for example, John Rhodes who said:

    the NPPF is perfectly capable of operating as their Local Plan until they have their Local Plan in place, because it says, yes, they should try to meet developments requirements, and yes, there is a presumption in favour of development, but only if its adverse effects do not outweigh its benefits.[187]

103. As well as the problem of absent Local Plans, there is the opposite but equally worrying concern that Local Plans will become bloated, with local authorities wanting to incorporate into their individual plans large amounts of the planning policy and guidance that has been rejected in the draft NPPF. Hampshire County Council predicted that Local Plans, far from being succinct as the NPPF advises, would be "detailed and comprehensive", which in turn "has implications for both the time and cost of their preparation and how accessible (or otherwise) they are to the layman."[188] Community and Regional Planning Services wrote that local planning officers may want to incorporate some of the lost detail from Planning Policy Statements into their Local Plans, where this does not conflict with the NPPF.[189] However, some believe that large Local Plans are not a concern, but rather allow local authorities to pick and choose which policies they need for their specific, local area. Cllr Gary Porter, representing the LGA, commented: "Surely it is better to have a large Local Plan than it is to have a large national plan?"[190] Local Plans might also expand to accommodate policy from the Regional Spatial Strategies, which are now abolished. There is a substantive case for authorities to do that now, as they have previously been advised not to cover policy issues incorporated within those regional plans.

104. There is a tension between the advice in the NPPF that Local Plans should be succinct, and the need for local authorities, in the absence of national guidance, to produce comprehensive plans tailored to local circumstances. We share the Government's desire for succinct Local Plans, but accept that somewhat longer Local Plans are inevitable because they will fill significant gaps left by the loss of regional plans and by the substantial reduction in detail of national policy.

Tensions between the NPPF, Local Plans and Neighbourhood Plans

105. The NPPF describes Neighbourhood Plans, and the way in which they relate to Local Plans, as follows:

    Neighbourhood plans give communities direct power to plan the areas in which they live. Parish and neighbourhood forums can use neighbourhood plans to:
  • Develop a shared vision for their neighbourhood;
  • Set planning policies for the development and use of land; and
  • Give planning permission through Neighbourhood Development Orders and Community Right to Build Orders.

      This provides a powerful set of tools for local people to ensure that they get the right types of development for their community. However, the ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans, therefore, must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area. Neighbourhood plans should reflect these policies and the neighbourhoods should plan positively to support them. Neighbourhoods will have the power to promote more development than is set out in the strategic policies of the Local Plan.[191]

    106. Much of our evidence, both for and against the NPPF, highlighted the contradictions that exist in the NPPF and its relationship to Local Plans and Neighbourhood Plans. Professor Paul Cheshire summarised this point:

      There is no way of getting away from the fact that real conflict exists. You cannot always do what the neighbourhood wants; you even cannot do what the locality wants. There must be a wider community, social and environmental interest.[192]

    The Planning Officers Society wrote:

      The Government's mixed message, about localism versus centrally-driven policy objectives, is perpetuated in this document, with little or no acknowledgement of the importance of localism as an element of national planning policy.[193]

    107. Cllr Porter told us that once Local Plans were written, taking into account the NPPF, "Neighbourhood Plans should be able to fit into a Local Plan so communities will be able to determine for themselves where development that is needed goes. What they will not be able to determine is the fact that they do not need any".[194] However, the drafting of the NPPF is confusing and seemingly contradictory on the status of Local Plans versus Neighbourhood Plans. Paragraph 50 states that Neighbourhood Plans must be in general conformity with the Local Plan's strategic policies (although it also states that Neighbourhood Plans can promote more development than is set out in the Local Plan's strategic policies).[195] However, paragraph 51 states that:

      Outside these strategic elements, Neighbourhood Plans will be able to shape and direct development in their area, subject to the presumption in favour of sustainable development. When a Neighbourhood Plan is made, the policies it contains take precedence over existing policies in the Local Plan for that neighbourhood, where they are in conflict.[196]

    As retirement housing provider McCarthy & Stone highlighted, it is unclear from the draft NPPF when Local Plans take precedence and when Neighbourhood Plan take precedence, and "further clarity is needed, particularly on what is deemed a 'strategic' decision".[197]

    108. This ambiguity in the NPPF will, however, make it harder to encourage local people to engage in planning matters, a point made by Tony Burton of Civic Voice, who told us that people "are questioning the very basis on which the system is being established and the very purpose for which it is there."[198]

    109. The Government believe that the New Homes Bonus will incentivise communities to be more receptive to development[199], but such incentives, including the New Homes Bonus and the Community Infrastructure Levy, may not have such an effect.[200] This point was summarised by the Planning Officers Society:

      One of the biggest untested assumption in the Framework is […] the willingness of communities to deliver the amounts of growth the Government wants to see, incentivised by Community Infrastructure Levy, the New Homes Bonus and the new freedoms promised by localism. We have seen plenty of examples of communities which are willing to spend considerable sums of their own money to prevent development, and we are not necessarily convinced that the new incentives will lead to a sudden dramatic reversal of public opinion.[201]

    110. Mike Holmes, of the Planning Officers Society, told us that the main reason why people will get involved in formulating Neighbourhood Plans will be to stop development, rather than to bring forward more development, which highlights the fundamental tension between the principles of localism and growth:

      Where are the areas where people are looking forward to do their Neighbourhood Plans to bring forward more development? Talking to members of the Planning Officers Society, we cannot identify many of these; in fact, the opposite. The approaches that have been made to local authorities are often based on trying to stop development or shape it in a way that will not bring the development forward. So there is a real tension there [...] which is not really brought out or acknowledged in the NPPF as it is drafted.[202]

    111. Further clarification is also needed on how detailed Neighbourhood Plans need to be and whether there is an option for a very brief Neighbourhood Plan—a 'Neighbourhood Plan lite'—which may list only a few items. Trudi Elliot from RTPI told us that, under the existing planning system, there are "about 20 different planning tools that communities can use to help them shape their community", but that the Localism Act makes neighbourhood planning "heavy" and "quite complicated".[203]

    112. The LGA called for the document's 'core planning principles' to include an "explicit and unequivocal" reference to localism and the discretion of local communities.[204] However, Cllr Porter admitted that "expectations certainly have been raised that people will have a greater control over their own destinies", but said that, as long as enough time is given to ensure Local Plans are in place, such control will be granted.[205] The Institution of Civil Engineers wrote that it is "uncertain that the draft NPPF recognises that some Local Plans may, for good reasons, decide that some forms of sustainable development are not desirable in specific locations. In such cases, which has primacy?"[206] The relationship between the NPPF, Local Plans and Neighbourhood Plans needs to be set out clearly and cogently within the body of the NPPF, including the way in which strategic and local priorities are to be taken into account, especially when these priorities conflict. The NPPF must clarify whether the Local Plan or the Neighbourhood Plan takes precedence. It should also define what constitutes 'strategic issues'. The NPPF should confirm that, in all planning decisions, it is a well-evidenced Local Plan that provides the operational expression of the general presumption in favour of sustainable development.

    The duty to co-operate and evidence bases for Local Plans

    113. Section 110 of the Localism Act 2011 imposes a 'duty to co-operate' on local planning authorities in preparing plans when relating to 'strategic' matters that would have a significant impact on at least two planning areas.[207] Further detail on the duty is contained in the draft NPPF, which states that Local Plans should seek to meet unmet development and infrastructure requirements from neighbouring authorities "where it is practical to do so."[208] The independent examination of plan documents for their 'soundness' will include an assessment of whether the planning authority has complied with the duty. John Rhodes commented that he did not believe this element of compulsion would need to be employed very often, "because planning authorities naturally do want to plan what is required for their areas, including cross-boundary stuff. They do it very well."[209] The LGA stated that there were already numerous examples of councils working together strategically.[210]

    114. Not everyone was convinced, however, that the duty to co-operate would be an adequate replacement for the 'larger than local' view of planning hitherto provided by Regional Spatial Strategies.[211] The Rail Freight Group predicted that while "diligent, pro-growth authorities are likely to take this duty seriously", others would merely "pay lip service" to it.[212] The Group was concerned about how effectively the duty would support developments whose benefits were regional or national, but have disbenefits that were mostly felt locally.[213] Stuart Hylton of the Planning Officers Society noted that "a duty to co-operate is not the same thing as a duty to agree", and argued it was wrong to assume "that agreement is always there for the reaching, if you just consult each other hard enough".[214] The UK Environmental Law Association predicted that, under the new system, "the problem will come with issues where no authority wants to take the lead—for instance, gypsy site provision in the South East, or the need for an urban extension into neighbouring authorities' areas."[215] Many witnesses were concerned by the lack of sanctions for any local authority that declined to co-operate with others, especially as the control mechanism proposed—the power of the Planning Inspectorate to find a plan unsound—could in theory end up penalising a local authority which, through no fault of its own, has been unable to persuade its neighbours to co-operate.[216] Furthermore, this control mechanism would only come into play at a very late stage of the plan formulation process.[217] Short of the Inspector judging a plan to be unsound, we see no other sanction in the process.

    115. The draft Framework states that Local Plans must be based on "adequate, up-to-date and relevant evidence".[218] The range of topics on which such evidence must be assembled is potentially very large, and relates to matters on which co-operation will be necessary, as well as matters solely within one authority's area. Strategic priorities—those on which local planning authorities will have a duty to co-operate—are listed in the draft NPPF; they include housing and economic development requirements, the provision of infrastructure for transport, minerals, waste, energy, communications and health, climate change mitigation and adaptation, and protection and enhancement of the natural and historic environment.[219] Consultancy Arup questioned whether local authorities individually or in groups would have the necessary evidence on which to make reasoned judgments on such issues.[220] Dr Hugh Ellis of the Town and Country Planning Association noted that Regional Spatial Strategies had previously provided data sets relating to climate change, energy and demographics, and he argued that this information would be missed in future efforts to co-operate on strategic matters.[221] Barratt Developments plc considered that the constitution of an evidence base for Local Plans was one of the NPPF policies on which more detail would be required.[222]

    116. The draft NPPF states that local planning authorities should "use an evidence base to ensure that their Local Plan meets the full requirements for market and affordable housing in the housing market area".[223] Elsewhere in the document the need for local authorities to prepare Strategic Housing Market Assessments (SHMAs) and Strategic Housing Land Availability Assessments is referred to.[224] Groups of practitioners have been encouraged to work together to produce guidance on how to compile the necessary evidence base;[225] Cllr Gary Porter predicted that "there may well be two or three slightly competing sets of guidance we could use, and councils will be able to choose the guidance that most appropriately fits their needs."[226] The Planning Officers Society, however, expressed the view that a common approach would be beneficial, particularly in terms of saving time and money, and local authorities could then be given the opportunity to justify taking a different approach.[227] McCarthy & Stone, a provider of retirement housing, commented that at present SHMAs vary greatly in quality "and in our experience they are often deficient".[228] Roger Harding, Shelter's Head of Policy, Research and Public Affairs, also argued that there was a need—and demand—for a clearer, consistent methodology for assessing housing need at a local level:[229]

      If you are all using a similar methodology, you can understand the trade-offs, and it facilitates the discussions that need to happen between neighbouring local authorities as to where housing is going to be built, particularly if one local authority has some significant land-supply constraints. It also helps people hold their local authority to account. [... There] is a danger that, if [councils] feel they are going to be unable or unwilling to deliver more housing, they could use a definition of housing need that produces a somewhat lower figure than is the actual reality on the ground.[230]

    The National Housing Federation suggested that each housing needs assessment should itself be subject to a soundness test as part of the Local Plan examination process.[231]

    117. Consistency between local authorities in assembling evidence bases for Local Plans is crucial to the effective functioning of the duty to co-operate. While we understand that the Government believes the Duty to Co-operate contained in the Localism Act 2011 coupled with other developments such as the creation of Local Enterprise Partnerships will ensure that spatial planning is adequately addressed, we share some of these concerns. Without consistency, it will not be clear what benchmark the Planning Inspectorate will use for judging the 'soundness' of plans, especially when neighbouring local authorities have been unable to reach agreement about the need for or location of new housing. Therefore we recommend that the guidance being produced by practitioners on assembling an evidence base for housing be officially adopted by the Government. We also recommend that the Government commission groups of practitioners to produce similar, authoritative guidance on assessing needs for other types of infrastructure.

    118. Waiting until and relying upon the Planning Inspectorate's judgement about 'soundness' seems to us an inadequate means of enforcing the duty to co-operate. We consider that the Government should set out an alternative means of ensuring that local authorities demonstrate successful outcomes from their co-operation. This alternative method should be informed by a report from the Planning Inspectorate on the existing degree of co-operation in development plans and, thereafter, by an annual report on the effectiveness of section 110 of the Localism Act in respect of development plans.

    119. Finally, it was clear to us that the absence of Local Plans was a contributory factor to the shortage of homes that have been built over many decades in England, and it is reasonable to expect that a requirement on local authorities to adopt Local Plans based on sound evidence of need will help facilitate an improvement to this situation.

    176   Planning and Compulsory Purchase Act 2004, section 38(6) Back

    177   Draft NPPF, para 14 Back

    178   Draft NPPF, para 19 Back

    179   Q 58 Back

    180   Q 190 Back

    181   Q 19 Back

    182   Draft NPPF, para 19 Back

    183   HC Deb, 20 October 2011, col 1080 Back

    184   HC Deb, 5 September 2011, col 12 Back

    185   Q 308 Back

    186   Qq 90, 11 Back

    187   Q 19 Back

    188   Ev w45 Back

    189   Ev w27 Back

    190   Q 164 Back

    191   Draft NPPF, para 50 Back

    192   Q 62 Back

    193   Ev 113 Back

    194   Q 137 Back

    195   Draft NPPF, para 50 Back

    196   Draft NPPF, para 51 Back

    197   Ev w6 Back

    198   Q 195 Back

    199   Ev 155 Back

    200   Ev w212 Back

    201   Ev 115 Back

    202   Q 137 Back

    203   Q 294 Back

    204   Ev 116 Back

    205   Q 151 Back

    206   Ev w213 Back

    207   Localism Act 2011 section 110; see our Second Report of Session 2010-12, Abolition of Regional Spatial Strategies: a planning vacuum?, HC 517, para 72, for this Committee's views on the Duty to Co-operate as set out in the Localism Bill. Back

    208   Localism Act 2011, section 110; Draft NPPF, paras 44 to 48 Back

    209   Q 40 Back

    210   Ev 119 Back

    211   Ev w95, Ev 114, Q 61 Back

    212   Ev w96 Back

    213   Ev w95 Back

    214   Q 174; see also Ev w150; see also Ev w107.  Back

    215   Ev w156 Back

    216   Ev w63; Ev w150; Ev w20; Q 61 Back

    217   Ev w159 Back

    218   Draft NPPF, para 27 Back

    219   Draft NPPF, para 23 Back

    220   Ev w129 Back

    221   Q 61 Back

    222   Ev w49 Back

    223   Draft NPPF, para 109 Back

    224   Draft NPPF, para 28 Back

    225   Ev 149; Q 157 Back

    226   Q 157 Back

    227   Q 169 Back

    228   Ev w4 Back

    229   Q 236; see also Ev w1 [David Holmes], Ev w83 [Highbury Group on Housing Delivery] Back

    230   Q 237 Back

    231   Ev w247, w250 Back

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    Prepared 21 December 2011