HC 1526 Communities and Local Government CommitteeWritten evidence from the Town and Country Planning Association (TCPA)
1. About the TCPA
1.1 The Town and Country Planning Association (TCPA) is an independent charity working to improve town and country planning. Its cross-sectoral membership includes organisations and individuals drawn from practitioners in local government, private practice, housebuilders, academia, third sector organisations and special interest groups. It puts social justice and the environment at the heart of policy debate and champions fresh perspectives on major issues of planning policy, housing, regeneration, the environment and climate change. Our objectives are to:
Secure a decent, well designed home for everyone, in a human-scale environment combining the best features of town and country.
Empower people and communities to influence decisions that affect them.
Improve the planning system in accordance with the principles of sustainable development.
2. Introduction
2.1 The TCPA wants to see an outcome driven and visionary planning system which is responsive to people’s needs and aspirations and delivers long term sustainable development for the nation.
2.2 While planning can claim many substantial achievements, we recognise that the current system can be unresponsive and remote from communities and does not always deliver the high quality outcomes vital to building a better future for England. The Government’s draft National Planning Policy Framework (NPPF) seeks to simplify and streamline planning policy. The TCPA recognises the value of removing unnecessary duplication and complexity in national policy while retaining proven ideas and approaches which have been working well. Our key objective is to ensure that the new NPPF is both visionary and workable. It must help deliver high quality, well located homes; create dynamic local economies; and deal with the pressing challenge of climate change. In reforming the planning policy, we must ensure that the new framework:
Contains a powerful and coherent operational definition of sustainable development based on the 2005 UK Sustainable Development Strategy.
Increases certainty and clarity.
Leads to better outcomes for all sections of society.
Is accessible to all sections of society with a clear governance structure recognising the importance of community rights and democratic accountability.
3. The Purpose of the NPPF
3.1 The draft NPPF is intended to replace the existing suite of Planning Policy Statements (PPSs) and Planning Policy Guidance notes (PPGs) with a concise unified document. All PPSs, PPGS, Minerals Policy Statements (MPS) and Minerals Planning Guidance (MPG) will be revoked as well as a number of “Chief Planning Officer” letters and some circulars (see table at Para 38 of the Consultation document). It is now clear that the NPPF will not replace all circulars and guidance and that further consideration is being given by the Department for Communities and Local Government (DCLG) about what further advice
“Draft National Planning Policy Framework”.
“Draft National Planning Policy Framework: Consultation” which sets out questions and how to respond.
“Draft National Planning Policy Framework: Impact assessment” (Note: There is a separate equalities impact assessment).
3.2 This latter document is also in the form of a consultation and contains many of the assumptions behind the policy in the NPPF. It sets out the Government’s evidence base for streamlining planning policy into one consolidated Framework. The TCPA is concerned that the impact assessment does not contain a robust evidence base and that it does not reflect the potential costs of the proposed new framework.
3.3 The TCPA believes there should be three tests applied to the new NPPF:
Vision...does the NPPF set out the right challenges facing the nation and does it offer the right spatial vision for solving them?
Principles...does the NPPF contain the right principles for planning in terms of sustainable development? Are these principles articulated clearly?
Workability...Is the NPPF deliverable? Is the policy clear and consistent and does it reflect the law?
3.4 The provisional view of the TCPA is that the current draft does not meet these tests but that key amendments, particularly around the definition of sustainable development, would substantially improve the outcomes for business and communities.
4. Does the NPPF Contain the Right Vision for England?
4.1 As drafted, the NPPF does not set out a clear and ambitious vision for the future of England. Neither does the framework contain a section which deals with the multiple challenges to the nation over the next 20 years. The document focuses primarily on short term growth issues and would benefit from articulating a coherent analysis of the multiple social, economic and environmental challenges facing the nation in the medium and long term.
4.2 We understand that it was not the Governments intention to make the NPPF a spatial framework for the nation and as a result it does not address the diverse spatial nature of the nation. The draft NPPF does not reference the very particular urban fabric of England and the role of key urban concentrations such as London. This places significant limitations on the usefulness of the document in guiding our collective strategic future.
The TCPA strongly recommends that the Government sets out a spatial vision for England that would deal with the broad implications of for example, demographic and climate change and help reconcile the twin, and often conflicting, imperatives of localism on the one hand and national pro-growth agenda on the other. The NPPF would also benefit from suggesting the kind or location of new settlements which might be preferable (for example between urban concentration or rural dispersal). A clear and positive statement of how the NPPF relates to other strategies such as the suite of National Policy Statements (NPS), the National Infrastructure Plan, the Natural Environment White Paper, and the UK Low Carbon Transition Plan would be very helpful.
5. Key Planning Principles
5.1 The draft NPPF sets out the overriding policy principles for planning. It then discusses plan making and development management before focusing on a number of specific policy issues. In terms of planning principles there is clearly a hierarchy in the document which decision makers will need to address and which affords more weight to the section headed “Core planning principles” (paragraph 19, page 5).
5.2 Sustainable development: The first principle of the NPPF is sustainable development, but expressed very differently to the 2005 UK Sustainable Development Strategy. Unlike the current PPS1 (2005), the NPPF does not reference the UK Sustainable Development Strategy and, as a result, contains no coherent articulation of how sustainable development principles should be applied in spatial planning. It also ignores the very valuable learning and knowledge which underpinned the ambition of the 2005 UK Strategy. The reference to the Brundtland definition in paragraph 9 of the draft NPPF does capture the notion of protecting the interests of future generations but it does not provide a detailed mechanism for its implementation which is contained in the UK Sustainable Development Strategy. For example, one the key bridging concepts between Brundtland and practical delivery was the notion of “living within environmental limits” (see Annex 1). The draft NPPF contains no reference to this foundational aspect of sustainable development. Neither is there any content on social justice or equality which featured heavily in the existing PPS 1 (see in particular Paragraph 13 of the existing PPS 1). The net result is that the draft NPPF does not contain a recognised or comprehensive definition of sustainable development and does not appear to have the operational principles necessary for its delivery. This is a crucial concern because the new test of whether a development is “sustainable” in relation to the presumption in favour of sustainable development is now to be solely the NPPF which itself re-defines sustainable development as largely economic growth.
The TCPA strongly recommends that the definition of sustainable development in the NPPF accurately reflects Government’s own 2005 UK Sustainable Development Strategy. The NPPF should then articulate a series of outcomes focused priorities which can be the basis of local plan-making and which can be used for monitoring progress on key economic, social and environmental goals.
5.3 The NPPF makes clear in a number of places that the key objective of the planning system is “sustainable economic growth”. The Impact Assessment document goes further to identify the liberalisation of planning policy as a major benefit to the private sector.
5.4 The presumption in favour of sustainable development: The second major principle defined by the NPPF is the presumption in favour of sustainable development which is recognised in the consultation document as the primary mechanism to facilitate economic growth. The presumption works as a deregulatory measure (“the answer to development and growth should wherever possible be ‘yes’, except where this would clearly conflict with other aspects of national policy” Para 16 NPPF consultation document.) The claim that the presumption will be sustainable rests with reference to the contents of the NPPF which, as outlined earlier, is not a recognised expression of sustainable development principles.
5.5 There will now be two primary presumptions at work in the planning process. The existing presumption in favour of the plan as set out in law (Section 38 of 2004 PCP Act), and the policy presumption in favour of sustainable development. Initially, there is likely to be a significant tension between these two ideas but the Government’s intention is to ensure that eventually all plans are founded on the presumption in favour of sustainable development. This is complex because it had been previously assumed that the presumption was meant to operate where plans were “silent”, “out of date” or “indeterminate”. In fact, the presumption is now also the core principle of both plan-making and development management.
5.6 This raises questions about how a general policy to say “yes to development” sits alongside a plan-making process which has to go through a Strategic Environmental Assessment (SEA) as well as allocate sites strategically, and often sequentially, to ensure sustainable patterns of development. In basic terms, if the default answer to all development is yes then what function does a plan have? The risk is that while the NPPF places an emphasis on the plan-led system, the plans themselves may be residualised to mapping statutory designations but unable to set a strong positive vision for the future.
5.7 For example, it may be hard to defend long term commitments to highly sustainable developments against shorter term speculative sites (particularly with the impact of the viability test discussed below). It is also interesting to reflect on how a presumption which applies the NPPF to test all cases where plans are “absent, silent, indeterminate or out of date” relates to the ambition for localism.
The Role of Policy Presumptions in the Planning Process
There has been much debate in recent weeks as to the real effect of the Government’s presumption in favour of sustainable development. Minsters have pointed out that such presumptions are not a new concept in planning policy.
Policy presumptions do in fact have a long history in planning and can most obviously be seen in relation to Green Belt (PPS2) and opencast coal (MPG3). A general presumption in favour of development was a key operational principle of planning for many years. This general presumption in favour was contained in national policy (See PPG 1 1988), Ministerial Statements and was supported by case law.
However, this position changed with the introduction of the Planning and Compensation Act 1991 which introduced in section 54a an effective presumption in favour of the plan in decision-making. This “represented a major departure” from the traditional presumption in favour of development position (Telling and Duxbury, Oxford 2009 pg 224). This position did not make the plan overwhelmingly determinate in all cases, because all presumptions are capable of being overturned by individual circumstances, but it was a major reinforcement of the plan-led strategic approach. In short, it refined the general presumption in favour of development to a focused presumption in favour of development described in the plan. The language of the general presumption in favour of development was subsequently removed from national guidance and does not feature in the current PPS 1 (2005). The change to a presumption in favour of the plan was in part intended to combat the growing tendency in the 1980s for planning by appeal where developers felt less confident that the contents of plans were a meaningful guide to planning outcomes. (Appeals increased to a record of 33,200 in 88/89 with the success rate rising from the average of approximately 33% to over 40%. As a comparison in the buoyant years between 2002 and 2008, appeals never exceeded 23,000 (PINs Statistical Reports)). Planning by appeal had mixed outcomes but undoubtedly led to a growing lack of confidence in the system on behalf of communities and business.
5.8 There is a very real risk that without further clarity the new presumption will act in the short term to undermine a plan led approach (see sections 13 and 14 on transitional arrangements) resulting in greater appeals and uncertainty. This outcome threatens public legitimacy and economic development.
6. The TCPA Position
6.1 The TCPA wants to see a positive and visionary planning system which is not inhibited by unnecessary process leading to mediocre outcomes. The best way to achieve this is through smart outcome driven plans which offer both strategic vision and allow for maximum community participation.
6.2 It is not clear to the TCPA that the presumption, as currently described, helps deliver this objective. If the Government is to pursue the presumption it should be applied very carefully with a clear understanding of the intended objectives and avoiding the risks of unnecessary delay and uncertainty which flows from the issues described above and in particular from the lack of a clear definition of sustainable development.
6.3 The presumption should be used to support plans and plan-making and not to undermine them. There should be an unambiguous statement of support for the plan-led system where plans are up-to-date. The test of “up-to-date” should continue to have an element of proportionality and flexibility. Plans themselves should not be subject to the general policy presumption in favour of sustainable development, but to existing provisions of the NPPF to deliver for the development needs of communities and business based on a clear and objective evidence base.
6.4 Where plans are absent or clearly out of date there may be a case for a return to the presumption in favour of sustainable development but only if sustainable development has a proper operational definition based on the 2005 Sustainable Development Strategy.
7. Strategic Cooperation
7.1 The NPPF deals briefly in paragraphs 44 to 47 with the challenges of strategic cooperation. The text does not significantly add to that contained in the primary clauses of the forthcoming Localism Bill. It does include a list of key issues for cooperation by references to the “strategic priorities” which are set out in Paragraph 23. These issues include housing, transport and climate change and provide a useful starting point for the scope of cooperation. However, there is no prescription on the form of cooperation and we remain concerned about how displaced demand will be dealt with in relation to housing, energy or minerals.
7.2 The separate DCLG consultation on Local Planning Regulations sets out a list of public bodies subject to the duty to cooperate. This list contains a selection of public bodies but omits any reference to key private sector partners, such as infrastructure providers, whose involvement is crucial to planning for strategic growth. This list could be strengthened by including organisations such as Network Rail and other major utilities.
In addition to the list of key issues for cooperation, the TCPA recommends the duty to cooperate is strengthened in the Localism Bill to include a defined output of cooperation and a geographical boundary. (See TCPA Localism Bill Briefing, May 2011, full reference on last page)
8. Neighbourhood Planning
8.1 Neighbourhood planning continues to be a feature of the NPPF but the scope of such plans appears to be restricted. The NPPF makes clear that neighbourhood plans should “reflect” and “positively support” the strategic objectives of the Local Plan and must also be subject to the presumption in favour of sustainable development. The need for general conformity between such plans is logical and welcome, but there are further restrictions on setting local standards in specific policy areas and in particular on building sustainability where there is a restriction to follow national standards.
The TCPA recommends that Government clearly sets out for communities what they can expect from the neighbourhood planning process so that communities can understanding the scope of their influence over local planning issues.
9. Core Planning Principles
9.1 The core planning principles on page 5 of the NPPF place an emphasis on commercial data and price signals
The TCPA recommends that climate change adaptation and mitigation receives greater emphasis as a core planning principle, and that in developing a proportionate evidence base for plan-making there is a requirement to gather data on carbon emissions. The core principles would benefit from setting a requirement to monitor or review progress against the strategic priorities set out in the NPPF.
9.2 The TCPA has long campaigned for the benefits of sustainable, comprehensively planned new settlements and the NPPF is completely silent on this issue. There is no reference to the wide ranging benefits which comprehensively planned new settlements can provide. This omission makes if difficult for local authorities to play a leadership role in the provision of new settlements. Significantly, the NPPF also does not give a general indication of the kinds of new growth the government might wish to see. For example, previous guidance suggested a concentration of growth on existing urban areas and on brownfield land; both of these commitments have been withdrawn. Other organisations have already raised concerns about additional “lost” policy areas, notably cultural and artistic assets. The TCPA strongly supports the inclusion of guidance on these issues in the NPPF.
The TCPA recommends that there is specific reference to the wide ranging benefits which comprehensively planned new settlements can provide which would help local authorities to play a leadership role in the provision of new settlements such as garden cities.
10. Specific Policy Issues
10.1 The NPPF sets out a number of specific policy issues including:
(1)
(2)
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10.2 Each one of these policy areas is described in two to three pages of text and the TCPA welcomes aspects of the specific contents on design and climate change. While the Impact Assessment states that overall there has been no major policy changes, the brevity of the Framework has removed very important guidance on methods and approaches. Housing and climate change are perhaps the most obvious examples of where the NPPF provides substantially less or no indication of how data should be handled, or in relation to climate change, where it can be sourced—the TCPA is particularly concerned about this in relation to climate change adaptation. This lack of clarity may lead to costs and delay by generating uncertainty as to what constitutes the right evidence base for Strategic Housing Market Assessments (SHMA), climate adaptation or what figure to apply for carbon reduction.
The TCPA wants to ensure that changes made to planning policy will lead to “faster” and more “transparent” decision making and therefore recommend that for key priorities, such as housing assessment and climate change mitigation, Government provides guidance on methods, approaches and sources of data.
10.3 The issue of viability and practicability are common themes in all the specific policy sections. Viability is established as a vital aspect of plan-making
10.4 The issue of viability risks being overemphasised and may undermine local authorities ability to ensure high standards. The UK development model does not include “open book” accounting which would allow for a transparent judgment to be reached on viability. While there are tools available to calculate viability these do not remove the need for a negotiated settlement between developers and local authorities.
The TCPA wants to ensure that local authorities negotiate reasonably but from a position of strength. The overwhelming stress on viability in the NPPF undermines the ability of local authorities to defend high quality development.
11. Specific Policy Concerns
11.1 In addition to the general concerns established above, there are further detailed policy questions:
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12. Workability
12.1 The Impact Assessment document which accompanies the NPPF states that the policy will:
Increase certainty and clarity.
Hand power back to people.
Be more user friendly and accessible.
12.2 The TCPA wants to help ensure that the NPPF meets these aspirations. At present, the TCPA is concerned that the draft document potentially introduces legal inaccuracies and uncertainties which could result in challenge and delay. It also contains policy inconsistencies and limits neighbourhood planning by reducing the policy scope of such plans and by imposing centralised policy approaches.
13. Legal Issues
13.1 Any change in policy creates unforeseen legal issues. However, the TCPA wants to highlight to the Government that some of the legal problems which may arise from the NPPF can be avoided rather than resulting in challenge and delay. For example:
The application of the presumption where plans are “absent, silent, indeterminate or out of date”
There will also be further areas of argument and challenge over the relative legal weight of the presumption in the NPPF versus the legal status of an adopted Local Development Framework (LDF). Where developers seek to appeal against refusals made on existing plans on the grounds they don’t include a presumption they will face the problem of the plan having much greater legal force than the NPPF.
The overall planning reform process would have benefited from clear transitional arrangements, but there is a particular problem in relation to the final publication of the NPPF. At that point all existing adopted LDFs - and those post examination or well advanced (at least 50% of plans in England by April 2012) -will be technically out of date. As a result, the presumption in favour of sustainable development will apply to all developments in their area so that the contents of the NPPF becomes the de facto policy framework (see Para 25 of the draft NPPF). Partly for the legal reasons described above and partly for obvious confusion this causes there is real risk of major delay (as the result of appeals and challenges) and even stasis in the local planning process. This position will remain until Local Plans are updated to reflect the new NPPF—a process which will take perhaps 18 months to two years. It is not yet completely clear how the Government will deal with this critical issue. Paragraph 25 of the draft NPPF makes clear that “it will be open to local planning authorities to apply for a certificate of conformity with the framework”. This optional approach appears to imply that DCLG will offer to test draft and adopted LDF’s to see if they conform with the NPPF. This raises a whole series of yet more questions about how precisely an LDF, based on a revoked Regional Strategy (RS) or the existing PPS 1, could ever meet a test of conformity with the new NPPF, particularly in relation to the presumption in favour of sustainable development. All of these issues provide a number of grounds for both appeal and for legal challenge.
Para 51 of the NPPF is legally incorrect. Neighbourhood Development Plans (NDPs) cannot outrank LDF’s in law because they both form part of the development plan and have equal legal status in the 2004 Act.
Para 62 and 63 of the draft NPPF gives a legally incorrect definition of how development management works in law.
The Legal Status of the NPPF
The NPPF is a statement of Government policy and unlike National Policy Statements (NPS), it has no definitive legal weight set out in primary legislation. The Consultation document makes clear that the NPPF will have the same status as PPSs set out in the 2004 Act. Section 19 of the Act makes clear that authorities should have “regard to” “guidance” issued by the Secretary of State. In practice the precise status of the NPPF is likely to be resolved by case law which will need to decide in each instance the relative weight to be given to a statutory development plan versus a non-statutory guidance document. This is not to say the NPPF is not a powerful statement of policy but simply to highlight the intrinsic complexity of enshrining key approaches in guidance rather than law.
14. Policy Inconsistencies
There is a significant difference in tone of the definition of the presumption in favour of sustainable development in Paragraph 14 with that in Paragraph 20. Paragraph 20 is based on the definition issued by DCLG in July and Paragraph 14 is significantly more deregulatory in tone by stating that Local Planning Authorities (LPAs) should “…approve all individual proposals wherever possible”. These subtle but important differences will be the source of a good deal of debate at appeal.
There are large policy conflicts between the sections on climate change which talk about “radical” reductions in carbon emissions and the sections on viability (see Para 39) which stress the need to not impose undue burdens on business. How are decision makers to resolve these conflicts?
The Impact Assessment assumes that it will be straight forward to judge when an application is in breach with the principles set out in the NPPF taken as whole; this will not necessarily be the case. Most medium and large scale developments are complex and produce multiple benefits and impacts. Ultimately the draft NPPF currently prioritises growth over sustainable development, but judging the precise level of impact on, for example, carbon emissions which should overcome the growth imperative will still be a complex matter of local judgment and will most likely result in appeals.
The TCPA is concerned that these issues will lead to uncertainty, appeals and legal challenge with consequent delay to the process. The TCPA believe it would be possible to reduce the scope of this delay by setting out a clear transition plan and stating explicitly what key concepts such as “indeterminate” mean in detail.
Annex 1
UK SUSTAINABLE DEVELOPMENT STRATEGY 2005, GUIDING PRINCIPLES DIAGRAM (P.16)
Further reading:
The Localism Bill and the Future of Planning, TCPA briefing for the House of Lords, May 2011:
The Future of Planning Report, TCPA report, June 2010:
Policy analysis of housing and planning reform, TCPA report supported by JRF, March 2011:
Re-imagining Garden Cities for the 21st Century, TCPA report supported by Land Securities, July 2011:
9 September 2011