The NPPF: Lack of clarity will lead to challenges

Any analysis of the lay of the land in the wake of last week’s publication of the National Planning Policy Framework has to begin with the requirements for determination of planning applications and weight to be attached to development plans.

The plan-led system remains, under which any decision on a planning application must be made in accordance with the plan unless material considerations indicate otherwise.

‘Limited conflict’ will be a fertile area for debate at inquiry and possibly in the courts, neither of which will assist in speeding up the development process or even making it more certain

The NPPF - and, in particular, the presumption in favour of sustainable development - does not primarily change the statutory status of development plans, nor can it as it is not legislation but guidance. However, what it does do is to change the weight to be attached to particular policies as the NPPF is a material consideration in the determination of planning applications, one that may indicate where a development plan or a development plan policy need not be followed.

Annex 1 of the NPPF deals with implementation of the framework that came into effect from the date of publication. The transitional arrangements for development plans are set out in paragraph 214 and 215, which state that:

214 “For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

215 “In other cases and following this 12-months period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

Local Planning Authoirites (LPAs) can therefore give full weight to policies adopted since 2004 where they do not conflict with the NPPF or conflict only to a limited degree. [For these purposes, adopted since 2004 means adopted under the Planning and Compulsory Purchase Act 2004].

There is no guidance about what is meant by the term “limited degree of conflict”. However, what is clear is that it will be significant as LPAs will want to give full weight to their policies and will therefore have to demonstrate that they are in accordance with the NPPF, save for any limited conflict. The draftsman could have used the term “general conformity” or “material conflict”, of course, rather than “limited conflict”.

Both of those terms are used in comparable circumstances and are generally understood. So it can be assumed that limited conflict is not the same as general conformity or material conflict. Indeed, this will be a fertile area for debate at inquiry and possibly in the courts, neither of which will assist in speeding up the development process or even making it more certain.

If policies are pre-2004 or conflict with the NPPF in more than a limited way, then paragraph 215 applies and the weight to be attached to those policies is a sliding scale, dependant upon the degree of consistency with the NPPF. It should also be noted here that paragraph 215 will continue to apply to all policies after the 12-month transitional period mentioned in paragraph 214.

Paragraph 215 means that the greater the degree of consistency with the NPPF a policy has, the greater the weight that can be attached to it. This clearly makes sense for policies which fail to be considered under this paragraph because they are in conflict with the NPPF but for pre-2004 policies not in conflict it does mean that if they are in conformity with the NPPF then full weight can be attached to them and it makes no difference to the weight to be attached that they have a pedigree from a local plan that is no longer current.
Again, there will be considerable debate about the amount of weight to be attached to particular policies.

The NPPF has brought in reality little change with national policy still leading the way

So, ultimately, what is the effect of existing policies?

Applications still need to be determined in accordance with the development plan including out-of-date policies in accordance with s38; however, the NPPF, as a material consideration, then comes into play and indicates the weight to be attached to policies, imposing a presumption where policies are out-of-date or in conflict with the provisions of the Framework.

So LPAs will first have to decide if a development is sustainable development. If the answer is yes, then the presumption in favour of sustainable development is engaged.

Second, the LPA will have to decide whether the relevant plan policies are out-of-date.

Assuming that policies are out-of-date or do not conform with the NPPF, the LPA then needs to decide the amount of weight to be attached to those policies.

Finally, those policies have to be weighed against the other material considerations and, in particular, impacts (demonstrable and significant) in the light of the presumption to grant permission to see if it is a grant or refusal of permission.

This is likely to make the decision-making process less certain and more open to challenge in the following ways:

1. Is it sustainable development?
2. Are the relevant plan policies out-of-date, i.e. are they in accordance with the NPPF other than in a limited way?
3. And how much weight should be attached to various policies on a case-by-case basis?

This certainly opens up scope for challenges to the extent that policies are material.

It appears that despite the desire to end top-down planning, the NPPF, in seeking to ensure that local policies are up to date, robustly justified and in conformity with the legislation, has brought in reality little change with national policy still leading the way – albeit now with a much lighter touch and a less detailed hand.

Tim Johnson is a partner in real estate and head of the planning and environmental team and Frances Robinson is an associate in real estate at DAC Beachcroft LLP