William Upton, Barrister, Six Pump Court and Fran Aldson:
[a version of this article was previously published in the UK Environmental Law Association’s journal, e-law, issue 74]
“The Practicalities of the Presumption in Favour of Sustainable Development” was a joint event was organised by UKELA and the Planning and Environment Bar Association (PEBA). Led by Morag Ellis QC, the Chairman of PEBA, our speakers were Dr Hugh Ellis (Chief Planner with the TCPA), Ben Linscott (the Planning Inspectorate, Group Manager (Planning)), and John Rhodes (Quod, Planning Consultant and one of the four authors of the practitioners’ draft of the NPPF). It was held on 22 November in the excellent lecture hall at Simmons & Simmons, and led to some robust discussion.
In this post William Upton and Fran Aldson, the Convenors of the UKELA Planning and Sustainable Development Working Party, identify the 10 key things to take away from the seminar.
1. The National Planning Policy Framework (NPPF) has been in place for 8 months now. It states that at its heart:
“is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking” (para 14).
It is notable how much disagreement there remains about the likely impact of this even now.
2. On one view, the NPPF has created a simplified, robust planning regime designed to speed-up development through the application of a straightforward test (development should proceed unless the harm outweighs the good). It is a near perfect document. On another view, planning in England is in the worse state it’s been since 1947; we have lost the evidence-base for planning policy, and the core principles and rationale that underpin it, and replaced it with legislative confusion and complexity. Consent and confidence – two pre-requisites for an effective planning system, have both been deeply eroded. There is no strategic content to the NPPF.
3. The Planning Inspectorate’ approach to determining planning inquiries has not been very different under the NPPF. Inspectors are not there ‘to deliver development’ and they will make decisions as impartially, and in light of the statutory and policy tests, as they have always done. There are however issues regarding localism, prematurity and the out-of-date nature of much of the evidence base for local plans.
4. One of the key difficulties remains the lack of common understanding as to what is ‘sustainable’, e.g. windfarms can be sustainable in energy terms, but not always so in terms of their impact on the landscape etc. There is no common view or shared ambition in the community about what it “sustainable”.
5. There was no agreement whether the NPPF contains a sustainability test. The Presumption in favour of sustainable development is in para 14, but in order to decide whether a particular development is ‘sustainable development’ is it necessary to assess it against the policies in para 18 to 219 as a whole before the Presumption can then be applied to it?
John Rhodes took the view that the NPPF does not call for a testing of whether a development is ‘sustainable’. The test is simply that development should be approved unless it can be shown that the harm outweighs the good. An alternative view is that the sustainability of a development does need to be considered under the NPPF. Indeed, this is the starting point before the presumption is applied.
This is an important point and it has been picked up in the planning blogs. One commentator (andrewlainton.wordpress.com) thinks John Rhodes was right – but that it is a narrow point. There is indeed no requirement that development be sustainable, nor a presumption against unsustainable development. There is a requirement to test whether a scheme is sustainable (in the narrow terms of the NPPF) in order to test whether or not the presumption in favour of sustainable development applies. Those that do pass should be approved ‘without delay’. But that doesn’t mean that schemes judged not to be sustainable are refused, simply that the presumption in favour (in para 14) does not apply. The normal statutory test would apply, that determinations are to be made in accordance with the development plan still applies unless material considerations indicate otherwise (such as the one that the plan is ‘absent, silent or relevant policies are out‑of‑date’!).
6. The next critical date is 1st April 2013. That is the point at which the transitional period for existing local policies will end and – in the absence of an ‘up-to-date’ Local Plan – the NPPF becomes the local plan. We will be left with ad hoc planning decisions, as there is no evidence base for the NPPF and it is only a general, national document. Several developers are awaiting this time with active interest.
7. The speakers all had their favourite paragraph of the NPPF. Hugh Ellis’s favourite footnote was Footnote 16 – that:
“Local planning authorities should adopt proactive strategies to mitigate and adapt to climate change, [16 … In line with the objectives and provisions of the Climate Change Act 2008]”.
Planning must therefore be in accordance with section 1 of the Climate Change Act. Should local plans be held to be unsound if they are not in accordance with the target that emissions are reduced by at least 80% by 2050, compared to 1990 levels?
8. The changes to the planning regime are set to continue. There is a further review going on regarding the remaining 6,000 or so pages of policy guidance (under Lord Taylor), consultations on proposed changes to permitted development rights and national infrastructure categories, and the Growth & Infrastructure Bill is currently before Parliament.
9. The Growth & Infrastructure Bill will apparently remove planning powers from local planning authorities that are deemed to be ‘failing’ and place them in the hands of the Planning Inspectorate instead. Hugh Ellis’s major concern was that this was highly centralising, and yet planning is a political process that requires local support and trust.
10. There was an acceptance that economic growth is the priority focus in the NPPF. We would like to hear from members about any decisions that are now being made where they consider that the NPPF has made the difference between refusal and permission. The debate about the practicalities of this particular presumption in favour of sustainable development in the NPPF will continue.
PLC subscribers interested in the issues raised in this article may find the following resources of use:
- Practice note, National Planning Policy Framework (NPPF): an overview.
- Practice note, National Planning Policy Framework (NPPF): interaction between planning and environmental regimes.