Uncertainty caused by transitional arrangements opens doors to appeals, say industry figures

Complex transitional arrangements set out this week in the government’s flagship planning reforms have been described as a “lawyers’ charter” that could lead to a spike in planning appeals.

The publication of the National Planning Policy Framework (NPPF) this week was welcomed by councils and lobbyists after significant amendments to the draft version, despite the fact it retained its controversial “presumption in favour of sustainable development”.

But an annex to the NPPF, which set out its “implementation” arrangements, also made clear that councils that have not updated their plans since the last revision of the planning system in 2004 would be subject to the presumption in favour immediately.

Conversely councils that have post-2004 plans have a year to update them before the NPPF comes into effect.

According to planning consultant Indigo Planning, only 38% of councils have post-2004 plans in place.

While the NPPF annex says plans under development could be given some weight, the chief executive of the Town and Country Planning Association, Kate Henderson, said the uncertainty would see an increase in planning appeals.

“There’ll be applications on greenfield sites under this and it’ll be for the government and the courts to decide,” she said.

Writing for Building magazine, Simon Neate, chair of planning at Indigo Planning, said where a post-2004 plan was not in place, “there had never been a better time” for developers to put in speculative planning applications for sites not earmarked for development.

Robin Tetlow, director at Tetlow King Planning, said the document would ultimately “feather the nest of lawyers”.

Ian Tant, senior partner at planning consultant Barton Willmore, said: “The language is so careful that most councils haven’t picked up on it. But the gist is pretty stark: If they’ve got a pre-2004 plan then they’re exposed. The pro-development lobby have every reason to be as pleased as the Local Government Association.”

Planning minister Bob Neill said councils with old plans were deliberately not given a transitional period as an incentive to update their plans.

He said: “It’s something they need to address urgently. However, this won’t open the floodgates to green land applications, because it is the framework as a whole they are subject to - not just the presumption in favour.”

Neill said while it was impossible to devise a planning system that “removed our legal friends” he did not believe the NPPF created greater risk of legal appeal.

Read Simon Neate’s article on the NPPF in full here.

NPPF key points:

  • Transitional arrangements: Councils that have failed to get a local plan in place since the system was reformed in 2004 are subject to the NPPF immediately - those with post-2004 plans have 12 months grace.
  • Sustainable development: definition expanded to include both the original “Brundtland” definition and the five principles of sustainability from the previous government’s 2005 Sustainable Development Strategy.
  • Land supply: Councils now have to identify five years of housing land, plus an extra 5% rather than five years plus 20%. Only those councils with a “persistent under delivery of housing” will be expected to identify 20%.
  • Brownfield land: Councils can draw up their own targets for use of previously developed land, leaving them free to prioritise greenfield or edge of town sites.
  • Town centre first policy: this has been strengthened and office development re-included, with an exemption for rural businesses.

 

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