RTPI SOUTH-EAST LEGAL UPDATE SEMINAR: LOCAL & NEIGHBOURHOOD PLANS THE IMPLICATIONS OF THE NEW NPPF (JULY 2018)

Transcription

1 RTPI SOUTH-EAST LEGAL UPDATE SEMINAR: LOCAL & NEIGHBOURHOOD PLANS THE IMPLICATIONS OF THE NEW NPPF (JULY 2018) 1 October 2018 Stephen Morgan

2 1. Overview 2. Key Changes with regard to plan making in the NPPF Housing Provision in local plans 4. Neighbourhood Plans 5. Two recent development plan related court cases

3 1. OVERVIEW With regard to plan-making, the 2018 NPPF applies to plans submitted after 24 January That needs to be read with the PPG as existing; and as changed in July; and looking out for forthcoming changes (e.g. design, green belt). The revised NPPF makes important changes to the policies applicable to plan-making but the 2012 NPPF applies to plans submitted on up to, and including, 24 January % of areas still do not have an up-to-date (post NPPF 2012) local plan. So this presentation will look (in section 2) at the main changes in the NPPF 2018 and compare to the existing position (for plan-making) under the NPPF I will also look in a little more detail (in section 3) at the changes in terms of housing provision, in particular with regard to the approach to providing the OAN as a minimum. Neighbourhood plans are given an increasingly important role in the NPPF 2018 and I will summarise the key aspects of that (in section 4). Finally, two recent development plan court cases are considered (in section 5).

4 2. KEY CHANGES IN RESEPCT OF PLAN-MAKING: TOPICS Characterisation of policies strategic and non-strategic Co-operation (NPPF 2012 at [178]-[181] and NPPF 2018 at [24]-[27]) Soundness (NPPF 2012 at [182] and NPPF 2018 at [35]) Viability (NPPF 2012 at [173]-[177] and NPPF 2018 at [57]) Green Belt (NPPF 2012 at [79]-[86] and NPPF 2018 at [133]-[142]) Reviews of Local Plans (NPPF 2012 at [217] and NPPF 2018 at [33])

5 Strategic policies can be contained in: CHARACTERISATION OF POLICIES: Strategic and Non-Strategic Policies (i) joint or local individual plans [17]; and/or (ii) a spatial development strategy produced by elected Mayor or combine authority (where plan-making powers have been conferred). Non-strategic matters: 18. Policies to address non-strategic matters should be included in local plans that contain both strategic and non-strategic policies, and/or in local or neighbourhood plans that contain just non-strategic policies. 19. The development plan for an area comprises the combination of strategic and non-strategic policies which are in force at a particular time.

6 Strategic policies: NPPF 2018 at [20] (cf. NPPF 2012 at [156]) Strategic policies should set out an overall strategy for the pattern, scale and quality of development, and make sufficient provision (in line with the presumption in favour of sustainable development) for: a) housing (including affordable housing), employment, retail, leisure and other commercial development b) infrastructure for transport, telecommunications, security, waste management, water supply, wastewater, flood risk and coastal change management, and the provision of minerals and energy (including heat); c) community facilities (such as health, education and cultural infrastructure); and d) conservation and enhancement of the natural, built and historic environment, including landscapes and green infrastructure, and planning measures to address climate change mitigation and adaptation.

7 COOPERATION: Attempt to strengthen this and introduction of SoCG New NPPF 2018 at [24]-[27] Maintaining Effective Cooperation. Effective and on-going joint working between strategic policy-making authorities and relevant bodies is integral to the production of a positively prepared and justified strategy (NPPF 2018 at [26]). In particular, joint working should help to determine where additional infrastructure is necessary, and whether development needs that cannot be met wholly within a particular plan area could be met elsewhere. SoCG - documenting the cross-boundary matters being addressed and progress in cooperating to address these. These should be produced using the approach set out in national planning guidance, and be made publicly available throughout the planmaking process to provide transparency (NPPF 2018 at [27] & PPG Paragraph: 002 Reference ID: ).

8 SOUNDNESS (S.20 of the PCPA 2004) NPPF 2018 at [35] (cf. NPPF 2012 at [182]) a) Positively prepared providing a strategy which, as a minimum, seeks to meet the area s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development; (underlined words not in 2102 version) b) Justified an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence; (cf. the most appropriate strategy) c) Effective deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and (SoCG is a new requirement) d) Consistent with national policy enabling the delivery of sustainable development in accordance with the policies in this Framework.

9 VIABILITY: Shift to this being considered at the plan making stage Presumption of viability where up-to-date policies have set out the contributions expected from development NPPF 2018 at [34] & [57] It is now up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. All viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available. See new section in PPG on viability and plan making from Paragraph: 001 Reference ID: > Price paid no longer justification for departure from policy requirements.

10 Parkhurst Road Ltd v SSCLG & LB Islington [2018] EWHC 991 (Admin) Challenge to decision of SoS refusing planning permission on appeal for a housing development that did not meet the authority s policy target for affordable housing. A site would be viable if the value generated by its development exceeded the cost of developing it, and the National Planning Practice Guidance para. 023 indicated that an assessment of the value of the site was central to the question of viability. Arguing that the developer had overpaid for the site, the lpa favoured a Benchmark Land Value calculation based on the "existing use value" plus a percentage uplift, crosschecked against comparable, market-based evidence (the "EUV plus" method). The Inspector and Court upheld the LPA s use of the EUV plus method see now the PPG at Paragraph: 013 Reference ID: The court emphasised the importance of overcoming uncertainty about how properly to assess the financial viability of residential developments.

11 GREEN BELT: Alterations to GB Boundaries stricter or a path to release? KEY POINT: It is now expressly stated that exceptional circumstances have to be fully evidenced and justified by the strategic policy-making authority. NPPF 2018 at [136] - Cf. NPPF 2012 at [83] & [84]: 136. Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period. Where a need for changes to Green Belt boundaries has been established through strategic policies, detailed amendments to those boundaries may be made through non-strategic policies, including neighbourhood plans.

12 What needs to be demonstrated? KEY POINT: Full consideration of other options NPPF 2018 at [137]: Before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, the strategic policy-making authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development. This will be assessed through the examination of its strategic policies, which will take into account the preceding paragraph, and whether the strategy: a) makes as much use as possible of suitable brownfield sites and underutilised land; b) optimises the density of development in line with the policies in chapter 11 of this Framework, including whether policies promote a significant uplift in minimum density standards in town and city centres and other locations well served by public transport; and c) has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.

13 Considerations when drawing up or reviewing GB boundaries KEY POINT: Sustainable Development NPPF 2018 at [138] (cf. [84] of NPPF 2012): The need to promote sustainable patterns of development. The consequences for sustainable development of channeling development towards urban areas inside the GB, towards towns and villages inset within the GB or towards specific locations beyond the outer GB boundary. Plans should (where release of GB necessary) give first consideration to land which has been previously developed and/or is well served by PT. Strategic planning authorities should also set out ways in which the impact of removing land from the GB can be offset through compensatory improvements to the environmental quality and accessibility of remaining GB land.

14 LOCAL PLAN REVIEWS & MONITORING New legal requirement reflected in NPPF 2018 From April 6, 2018 a lpa must review a LP every 5 yrs, from the date of adoption of the plan (Local Planning (England) Regulations 2012, reg. 10A) and NPPF 2018 at [31]-[33]). Relevant strategic policies will need reviewing at least once every five years to assess whether they need updating. If their applicable local housing need figure has changed significantly the relevant strategic policies will need updating; and They are likely to require earlier review if local housing need is expected to change significantly in the near future NPPF 2018 at [33]. Also need for reviews to update plans to be consistent with NPPF 2018 see [212] - [213] of Annex 1 Implementation.

15 3. HOUSING PROVISION IN LOCAL PLANS Housing policy laden NPPF 2018 Now delivery requirement as well as supply for housing NPPF 2018 at [73] Re. housing land supply (NPPF 2018 at [74]-[76]) - 5 year HLS with appropriate buffer where it has been established in a recently adopted plan or in a subsequent Annual Position Statement (APS); and where delivery below 95% of requirement over previous 3 yrs. > ACTION PLAN should be prepared. Small & Medium sites: through the development plan and brownfield register lpas should identify land to accommodate at least 10% of their housing requirement on sites larger than one hectare, unless it can be shown through the preparation of relevant plan policies, that there are strong reasons why this 10% target cannot be achieved (NPPF 2018 at [68(a)]).

16 Standard Methodology for Assessing Need & Current Confusion (NPPF 2018 at [60]) MERSEYSIDE COUNCIL LEADER SLAMS BROKENSHIRE OVER HOSUING NEED CONFUSION 27 September 2018 by Mark Wilding A Merseyside council has claimed that the publication of updated household projections has seen their housing requirement drop by almost a quarter and made it 'difficult, if not impossible' to produce a legally robust local plan. It is the second authority to raise concerns about the new household projections published last week by the government's Office for National Statistics (ONS), after Wirral Council said it wanted to revise its local plan in light of them.

17 The presumption in favour of sustainable development Re: [11] of NPPF 2018 cf. [14] of NPPF Plans and decisions should apply a presumption in favour of sustainable development. For plan-making this means that: a) plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change; b) strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas (5), unless: i. the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area(6); or ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

18 And as reflected in the soundness criteria However, it is of also note that as seen above for soundness ([35] of NPPF 2018 cf. NPPF 2012 at [182])): Positively prepared now says the plan should provide a strategy which, as a minimum, seeks to meet the Area s objectively assessed needs and be informed by agreements with other authorities, so that unmet need from neighbouring authorities is accommodated where it is practical to do so and is consistent with achieving sustainable development.

19 Delivering Homes A subtle shift? (Section 5 of NPPF 2018; Section 6 of NPPF 2012) CF. NPPF 2012 at [47] and NPPF 2018 at [65]: 47. To boost significantly the supply of housing, local planning authorities should: use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework,. (See Hunston Properties Ltd. [2013] EWCA Civ 1610 two-stage approach) 65. Strategic policy-making authorities should establish a housing requirement figure for their whole area, which shows the extent to which their identified housing need (and any needs that cannot be met within neighbouring areas) can be met over the plan period...

20 4. NEIGHBOURHOOD PLANS: Broadening Role DESIGN: NPPF 2018 at [125] -..Design policies should be developed with local communities so they reflect local aspirations, and are grounded in an understanding and evaluation of each area s defining characteristics. Neighbourhood plans can play an important role in identifying the special qualities of each area and explaining how this should be reflected in development. GREEN BELT BOUNDARIES: NPPF 2018 at [136] -. Where a need for changes to Green Belt boundaries has been demonstrated through strategic policies, detailed amendments to those boundaries may be made through non-strategic policies, including neighbourhood plans.

21 NDPs and Housing Delivery: Added Protection for NDPs Presumption in favour of SD see [11](d) re. out of date : 14. In situations where the presumption (at paragraph 11d) applies to applications involving the provision of housing, the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits, provided all of the following apply: a) the neighbourhood plan became part of the development plan two years or less before the date on which the decision is made; b) the neighbourhood plan contains policies and allocations to meet its identified housing requirement;. This enshrines the approach of the WMS December 2016.

22 [11]d) out of date > adverse effects Would so significantly and demonstrably outweigh the benefits For Local Plan Policies: 5 years HLS including buffer ([73]) & Housing delivery less than 75% of the housing requirement over the previous 3 years For Neighbourhood Plan Policies: 3 years HLS including buffer ([14]) & Housing delivery less than 45% of the housing requirement over the previous 3 years ([14]) (Subject to transitional provisions in [216])

23 NPPF 2018 [11(b)] - the neighbourhood plan contains policies and allocations to meet its identified housing requirement > 65. Strategic policy-making authorities should establish a housing requirement figure for their whole area, which shows the extent to which their identified housing need (and any needs that cannot be met within neighbouring areas) can be met over the plan period.strategic policies should also set out a housing requirement for designated neighbourhood areas which reflects the overall strategy for the pattern and scale of development and any relevant allocations. Once the strategic policies have been adopted, these figures should not need retesting at the neighbourhood plan examination, unless there has been a significant change in circumstances that affects the requirement. 66. Where it is not possible to provide a requirement figure for a neighbourhood area, the local planning authority should provide an indicative figure, if requested to do so by the neighbourhood planning body. This figure should take into account factors such as the latest evidence of local housing need, the population of the neighbourhood area and the most recently available planning strategy of the local planning authority.

24 The Reality and the Future Importance of NDPs increasing housing/design/gb/local Green Space (2018 NPPF [99]). Increased scope for non-strategic policies in NDPs and possibly NDPs mainly or even only. Increased emphasis on meeting identified housing needs. Is this a move towards Strategic Local Plans and Neighbourhood Plans? In any event need to be aware of increasing role of NDPs. BUT the tests for, and scrutiny of NDPs, are even less strict and more flexible than for Local Plans with often significant consequences for development prospects and tension with LPs ( [37]).

25 5. RECENT CASE LAW Challenging Local Plans R (oao CK Properties (Theydon Bois) Ltd v Epping Forest DC [2018] EWHC 1949 (Admin) (29 June 2018): Challenge by CPR 52 JR by development company to LP before examination Claimant wanted to develop the site for approx. 133 homes Site had originally been included but was left out decision in December 2017 The site selection report was published in March of the 2017 draft local plan by Issue 1: was the challenge by JR barred by section 113(2) of the PCPA 2004 which provides that a local plan must not be questioned in any legal proceedings except in so far as is provided for in s.113? Issue 2: was the decision substantively unlawful or procedurally defective?

26 Jurisdiction Issue S.113(2) of the PCPA 2014: A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section. HELD: Only a challenge to a local plan adopted by resolution (in accordance with s.23 of the PCPA 2004) was precluded by s.113(2) from being otherwise than by a challenge under s.113 (see also Manydown [2012] JPL 1188 and IM Properties Development Ltd [2014] P.T.S.R 1484). Further, the claim was challenging the steps taken, or not-taken, by way of preparation for submission of the local plan and that is not a challenge to the development plan document or local plan itself.

27 R (oao CK Properties (Theydon Bois) Ltd v Epping Forest DC [2018] EWHC 1649 (Admin): Decision of the Court At the time members took the decision in December 20017, they were well informed about the evidence base justifying the allocation of residential sites. Moreover, the documentation before the members at that time, contained sufficient evidence for them to come to a decision as to whether the draft plan was sound. The SCI was complied with as all the supporting studies were placed on the Council s website once completed. Even though Appendix B had not been completed at the time of the decision, it was entirely possible for the claimant to have an understanding as to why the local authority concluded that certain sites should be included and others not. There was no breach of regulation 19, as there was no real likelihood of the Inspector refusing to consider timely additional reps made after Appendix B was made available.

28 Section 38(6) of the PCPA 2004 and Neighbourhood Plans Chichester District Council v Secretary of State for Housing, Communities and Local Government, Beechcroft Ltd [2018] EWHC 2386 (Admin) (12 September 2018): Challenge to Inspector s decision allowing an appeal against refusal of pp for 34 dwellings on edge of Southborne in West Sussex, north of the Stein Road level crossing. As the site was outside the settlement boundary and did not meet an essential need, it was common ground that it conflicted with the LP However, Policy 1 of the NP gave support for development within the settlement and Policy 2 allocated 4 sites for housing (south of the level crossing to avoid congestion). Issue: did the Inspector fail to decide whether the proposed development conflicted with Southbourne Parish NDP as required by para 198 of the 2012 NPPF? Issue: did the Inspector irrationally rely upon a distinction between the "policies" of the NP and its "aims" when assessing whether the proposed development conflicted with the NP?

29 Chichester DC v SSHCLG [2018] EWHC 2386 (Admin): Decision of the Court The Inspector found that the proposal conflicts with the LP Policies 2 and 45 and does not accord with the aim of the NP re. the location of new housing (north of the level crossing). However, no 5 yr HLS and the application of NPPF 2012 [14] & [49] and the tilted balance applies and there would be limited harm. The Inspector found no conflict with the policies of the NDP. The distinction between policies and aims was in principle a rational one (see R(Campaign Ltd) v Mole Valley DC [2014] EWCA Civ 567). The supporting text was relevant to the interpretation of the plan, but whether a proposal conflicted with or was in accordance with a plan was to be determined by reference to the policies. Although the site was not within the settlement or an identified site, it was not explicitly contrary to either policy 1 or 2 the policies do not directly presume against the development outside the settlement boundaries. That was a matter for the LP.

30 Possible implications of this case Cf. NPPF 2018 at [14] which refers to adverse impact of allowing development that conflicts with the neighbourhood plan in contrast to WMS (December 2016) which states: This means that relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be out-ofdate under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made This is important regarding whether a breach of an aim (but not a policy) in a NDP triggers the 3-year threshold rather than the 5-year and thus whether the tilted balanced applies under paragraphs 11.