The new government has been swift off the blocks with planning reform, living up to their commitments to place this at the forefront of the growth agenda. Alongside this, Brookbanks has been assisting our clients directly to define how the reforms influence their development strategies and are pleased to share some of our insights in this article.
There are (so far) 4 constituent parts of the reform announcements;
These announcements were accompanied by the “Our Plan to Build More Homes” news story and the “Housing targets increased to get Britain building again” press release, the latter of which contained statements from industry stakeholders including but not limited to the HBF, RTPI, RIBA, RICS and LPDF.
Please reach out if you wish to discuss further with our Planning Lead, Annabel Le Lohé.
Presumption in Favour of Development
When applying the presumption, paragraph 11(d) has been ‘tweaked’ regarding which policies will be considered ‘out-of-date’, now defined as those which are “policies for the supply of land.” This wording is in contrast the former criteria which stated that the policies “which are most important for determining the application” would be rendered out of date.
Often, it’s the subtle changes that can have significant litigation attached to them. In 2017, a similar matter was taken to the Supreme Court seeking to define what the “Relevant policies for the supply of housing” were (Suffolk Coastal District Council (Appellant) v Hopkins Homes Ltd and another (Respondents) Richborough Estates Partnership LLP and another (Respondents) v Cheshire East Borough Council (Appellant).
That said, the addition of the footnote 8 provides greater clarity in this circumstance, defining the policies for the supply of land as those that “set an overall requirement and/or make allocations and allowances for windfall sites for the area and type of development concerned.
Housing Need and Supply
The protection upon LPA’s with Local Plans less than 5 years’ old exempting them from Housing Land Supply challenges and the associated transitional 4-year supply arrangements which were introduced in December 2023 have been removed. Authorities are once again expected to maintain a 5 Year Housing Land Supply, regardless of their Local Plan Status.
Another reversal from the December 2023 NPPF is the proposed removal of the “advisory starting point” wording within paragraph 61 (now renumbered to paragraph 62). The Written Ministerial Statement confirms in no uncertain terms that this should be mandatory, stating that “mandating that the standard method is used as the basis for determining local authorities’ housing requirements in all circumstances.”
The standard method once again is firmly in place to calculate local housing need requirement, however the calculation method itself is changing. A change has been long called for by many in the industry with the current method being based on housing projections from 2014 and the broad-brush urban uplift not being considered fully fit for purpose. The new method removes these elements and takes a more simplified 2 stage approach;
Ultimately, this results in a need for 371,541 homes (according to the government’s own schedule), representing an increase of 66k+ homes per annum. Multiplied across 5 years, the country’s need would be 1.85m homes, making the government’s ambition to achieve the delivery of 1.5m homes across their term seem plausible, that is if the country was able to meet its identified need. Unfortunately, the likelihood of meeting that need in delivery terms is not that simple, with last year’s annual completions sitting at only 231,100 homes.
However, aiming for a higher level of homes within plan-making and decision-taking is definitely a positive move in principle at the macro scale. Brookbanks has been advising clients on regional and LPA focussed basis and for the vast majority of LPA’s or joint planning units, there is an upward trend. The highest increases (outside of London) can be seen in Cornwall, Wiltshire and Cheshire East all with over 1,500 homes added to the per annum requirement. However, there are a series of LPA’s who will see their need decrease and there are some geographical trends that can be recognised. Perhaps unsurprisingly, the first grouping is half the cities which were previously subject to the urban uplift, of the 10 cities, the most significant decreases are in the West Midlands, with 2,200 and 1,554 homes per annum reductions in Birmingham and Coventry respectively.
Of the remaining LPAs where decreases in need arise from the new method, the East of England is the most affected, which is a little more surprising, as from our experience housing demand is still a major issue for this area and it is not widely known to have bucked trends regarding delivery/affordability. Luton, Central Bedfordshire and Bedford Borough all see decreases in need under the new standard method, all of which are at progressing Local Plan Reviews with varying advancement. Whilst a reduction of circa 93 units per annum from Bedford’s need requirement won’t equate to the equivalent of homes that were to be delivered at Kempston Hardwick and have been questioned at examination due to the Universal Project proposals, there could be some impact on the extent of potential new additional allocations.
There will need undoubtedly be further scrutiny over the method in the coming weeks, but it must be acknowledged that there will always be ‘winners and losers’ in applying a national standard method, as no mechanism will be able to account for all the vast variables that could affect particular regions.
Another amendment to affect supply calculations is that only a 5% or 20% buffer shall be applied when calculating the supply of specific deliverable sites, and there will no longer be a circumstance where a 10% buffer is applied.
Something to continue to look out for is the ‘long-term housing strategy’ that the Written Ministerial Statement confirmed will be published alongside the Spending Review. This Review is due to be concluded in Spring 2025, after the departmental budgets for this and the next financial year are confirmed at the Autumn Budget.
With the New Homes Taskforce establishment and intention for further appointments over the next two months, we anticipate that least some initial framework details for New Town ambitions will be included within the long-term housing strategy.
Commercial and Infrastructure Development
Whilst housing has been a primary driver of planning reform, it’s not where the growth agenda stops. Paragraph 84b has seen an addition so that planning policies should additionally identify appropriate sites for commercial development including suitable locations for uses such as laboratories, gigafactories, data centres, digital infrastructure, freight and logistics.
This ties in with supporting text in Paragraph 85 and the question asked of consultees, seeking views on the potential expansion of the Nationally Significant Infrastructure Projects regime to include these uses. The value these uses add to national economic progress is clearly being recognised and supported and there may be increased pressure on LPAs to specifically assess demand and allocate land for this purpose.
The Grey and Green Belts
LPA’s will once again be expected to review and alter Green Belt boundaries in exceptional circumstances such as if they cannot meet their housing or commercial requirement, with the wriggle room of Paragraph 145 of the December 2023 quashed.
Paragraph 144 now provides a ‘hierarchy for land release’ when amending Green Belt boundaries. Consideration should be first given to previously developed land in sustainable locations, then consider the newly defined Grey Belt land in sustainable locations which is not already previously developed, and only then consider other sustainable Green Belt locations.
Readers will be very familiar with the Grey Belt term which was a term coined through Labour’s General Election Campaign, although the new NPPF is the first time a formal definition has been printed, it states “for the purposes of plan-making and decision-making, ‘grey belt’ is defined as land in the green belt comprising Previously Developed Land and any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes (as defined in para 140 of this Framework), but excluding those areas or assets of particular importance listed in footnote 7 of this Framework (other than land designated as Green Belt).”
The WMS indicates that ‘grey belt’ land will be that which is “on the edge of existing settlements or roads, and with little aesthetic or environmental value.”
There is no doubt that landowners, promoters and developers across the country will have many sites in their land strategy to which this definition may apply and these NPPF changes will no doubt accelerate their delivery as an allocation/planning consent. Brookbanks’ planning and technical consultant Groups are already assisting in many of these instances and are primed to support the industry in seizing this opportunity.
Paragraph 152 considers that development on Grey Belt land will not be inappropriate should;
Additionally, Paragraph 151(g) slightly pares back the restrictions on limited or the partial or complete redevelopment of previously developed land, stating this will not be inappropriate when it simply “would not cause substantial harm to the openness of the Green Belt”
Although specifically mentioned regarding Grey Belt, Paragraph 155 appears to expect that all Green Belt sites (regardless of brownfield or Grey Belt status) must comply with the requirements of Paragraph 155 and provide;
Our experienced Cost and Commercial Group has worked on schemes seeking to deliver 50% affordable housing, the viability of which poses a significant hurdle. It is imperative that developers and landowners take early advice on the viability of sites before signing up to S106 and planning obligations from specialists such as Brookbanks in this field. Viability if dealt with early in the planning process can be addressed and the necessary steps taken to ensure a balance of obligations is deliverable to the benefit of all parties.
With regard to the proposed Annex 4, this does not appear to change the existing provisions of the NPPF in terms of viability. EUV has historically been £100k/acre or 10 times agricultural land value, however, a value has not been specified at this time.
The LPA now sets the benchmark land value, rather than the market / convention as was the case previously. This is further endorsed by point 2 that if the land cannot deliver policy compliant development at the council decided benchmark land value, then planning permission should not be granted.
Point 3 appears to ‘row back’ on the previous point in that viability should not be undertaken on policy compliant sites, but only insofar as to stop councils from seeking above policy levels of affordable.
Point 4 may open the door for viability challenges to policy compliance but only if the site is transacted below the bench mark land value, given this is EUV plus ‘a reasonable and proportionate premium for the landowner’. It is unlikely that sites would come forward as minimum land values in options would prevent transactions below this threshold.
Previously Developed Land
The strengthening of the planning balance in favour of brownfield land would push decision makers to accept these proposals in principle whether these are within settlements and would provide homes and meet other identified needs. In the WMS, the Angela Rayner even went as far as to say “the default answer to brownfield development should be yes; expanding the current definition of brownfield land to include hardstanding and glasshouses.”
Underperforming LPA’s have in many instances delayed or shied away from fully considering housing proposals regardless of brownfield or greenfield status, while the focus has been to get allocated/committed sites back on track to boost supply. The WMS states in no uncertain terms that “where authorities are under performing – be that lacking a sufficient land supply or failing to deliver enough homes as measured by the Housing Delivery Test – we will therefore also make it clear that applications for sites not allocated in a plan must be considered where they relate to brownfield and grey belt land.”
Local and Strategic Plan-Making
In the run up to the general election, discussions as to whether Localism would ‘die’ and Strategic Planning would be ‘revived’ were aplenty amongst theorists and practicians. The planning reform we’ve seen to date indicates a more muted approach but definitely with a steer towards strategic thinking and major masterplanning.
The NPPF revisions remain indicative on this topic;
The Written Ministerial Statement projects further ahead, showing more substantial strategic planning is on the horizon, albeit the starting point is with areas where there are elected Mayors, where many LPAs have taken the initiative to strategically think in any case. The formal process will be to develop and agree a Spatial Development Strategy for their area, with an expectation that this may at some stage be expanded outside of mayoral areas.
Other changes that are set to have more swift implications across all LPA’s focus around intervention and streamlining. Chapter 10 of the consultation questions seeks views on whether to update the local plan intervention policy criteria or to remove the criteria. Currently, decisions on intervention are made in line with relevant legal provisions and on the basis of intervention policy criteria set out in 2017 Housing White Paper, repeated here for ease of reference:
Removal of this criteria would result in pure reliance on Part 2 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). Section 27(1) of the 2004 Act sets out that intervention action may be taken if the Secretary of State thinks that a local planning authority is failing or omitting to do anything it is necessary for it to do in connection with the preparation, revision, or adoption of a development plan document.
The option to revise the criteria would apply in addition to the legal tests set out in the 2004 Act and be broadly formulated as proposed;
“A range of intervention options exist, from the issuing of plan-making directions through to the removal of plan-making powers, where the Secretary of State would arrange for a plan to be prepared in consultation with local people, and then brought into force. Decisions on intervention should have regard to:
The Secretary of State will give planning authorities an opportunity to put forward any exceptional circumstances in relation to intervention action.”
In either instance, the intention is for the decision to intervene or not will remain subjective, with no truly measurable criteria and therefore the fundamental impact of any change may be limited.
Throughout our engagement with the HBF and our industry forums, consistency in decision-making process has been discussed as strong opportunity. The WMS now confirms that the “Planning and Infrastructure Bill [to be introduced] later in the first session, which will: modernise planning committees by introducing a national scheme of delegation”, a welcome progression from the new government.
Thrown into the mass of planning reform announcements, Minister of State, Matthew Pennycook MP, wrote to the Planning Inspectorate looking to address the increasing length of Local Plan examinations. To do so, he set outs that ‘pragmatism’ should be used in Examinations only where it is likely that a plan is capable of being found sound. Although supporting the manner in which Inspectors guide Local Plan’s in the correct direction through Advisory Visits, the intention is to limit the extent of extra work being undertaken to correct fundamental soundness issues that might unduly extend the examination process. It is clearly stated that any pauses to undertake additional work should usually take no more than six months overall. This new approach will apply to all plans with immediate effect. Existing pauses already agreed by an Inspector should remain in place unless the Inspector considers there is insufficient progress being made.
Planning Fees and Obligations
Two changes within Chapter 5 of the revised NPPF will potentially affect the make-up of affordable housing requirements in S106’s. Paragraph 64 now states that planning policies should identify minimum proportion of social rent homes required, following on from that Paragraph 66 removes the minimum 10% threshold of affordable home ownership, instead.
A major deviation from what has been set up by the Levelling-up and Regeneration Act 2023 is the confirmation that the new government will no longer be pursuing the Infrastructure Levy. This follows many industry networks warning that its introduction could result in the reduction of funding available for affordable and social rent homes and deepen the housing crisis. There will be a renewed focus on improving the existing system of developer contributions instead.
Whilst there is no current movement on fee increases for major applications, the proposals to increase fees for householder applications, which well below cost recovery levels (estimated at £528), is being consulted upon. There is also a suggestion that LPAs could be empowered to set their own fees, better reflecting local costs and reducing financial pressures. It is unclear how this may differ or interact with Planning Performance Agreement payments.
The change in Para 112 a) suggests that ‘A vision led approach’ is undertaken in promoting sustainable transport rather than providing ‘appropriate opportunities.’ We consider that the rephrasing of this paragraph will result in more informative work needing to be presented at the planning stage, rather than advising that the opportunities exist for residents/ employees to use alternative modes. This would sit alongside the Active Travel (AT) assessment process which requires a detailed assessment to be carried out of routes to local facilities and Public Transport services by non-car modes, although the AT assessment is only required on developments of a certain threshold.
The changes to this paragraph would suggest that a similar process would be applicable to all sizes of developments, which for small developments may not be feasible or appropriate. It is considered that the wording ‘appropriate opportunities’ should remain although the ‘Vision led approach’ for larger schemes should apply.
The change to para 112 d) is considered unnecessary as I do not see the need to apply ‘through a vision led approach’ in respect to safety and mitigation. The paragraph is to ensure that the impact of the development is suitably mitigated whether this is in respect of highway impact or highway safety, a vision led approach is not considered applicable in this case.
The change to Para 113 adds on ‘in all tested scenarios.’ This addition is in my view unnecessary, as an assessment of impact may include a variety of scenarios which may include with and without mitigation. The ‘without mitigation’ may show that there is a severe impact, however with mitigation this impact is not severe, therefore it is not possible to demonstrate that there isn’t a severe impact in ‘all tested scenarios.’ This addition is therefore considered unnecessary and should be removed or the words amended to ‘in all final tested scenarios’.
Energy and Utilities
The NPPF now reflects the move praised by many experts and environmentalists to remove the de facto ban on onshore windfarms in England, putting them on a level playing field to other renewable projects. Paragraph 164 now states that LPA’s “should support planning applications for all forms of renewable and low carbon development” and “significant weight should be given to contributions to renewable energy and a net zero future.”
The revisions go further to reinforce the priority of renewables, by strengthening Paragraph 161 to state that plans should identify suitable areas for renewable and low carbon energy sources, and supporting infrastructure, compared to ‘considering identifying’.
Whilst this policy shift provides much needed support for certain maligned renewable energy generation project types, the challenge of connecting this generation to a heavily constrained electricity network remains for prospective generation developers and local authorities alike.
Timescales and Transition
The WMS is now a material consideration in decision making effective immediately, once finalised and formally published the NPPF policies will likewise be a material consideration in decisions from day one.
The NPPF revisions implementation and transition for plan-making is more complex. The policies will apply from one month after publication unless an LPA’s Emerging Local Plan;
Any Local Plan which is examined under the old NPPF and has a shortfall of more than 200 dwellings against the relevant new standard method will be expected to commence plan-making in the new plan-making system at the earliest opportunity.
