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2013 will be the year when the NPPF really bites, says expert

Out-Law Analysis | 18 Dec 2012 | 11:10 am | 4 min. read

OPINION: In 2013 local authorities are going to face real challenges retaining control of planning policy because a transition period relating to the National Planning Policy Framework (NPPF) will come to an end.

That transition period allowed previously-adopted plans to be given full weight even when they were in conflict with the NPPF. On 27 March that transition period comes to an end. This means that any local planning authorities who do not have an up to date development plan at the end of March will be subject to the full effect of the NPPF's presumption in favour of sustainable development.

A significant number of local authorities are still behind schedule with their Core Strategy and other development plan documents, so this will be a source of concern to them, particularly if they are struggling to demonstrate that they have a five year supply of housing available. That supply should be in place with 5% or 20% buffer – which figure is used depends on the local authority's circumstances. The figure is higher if there has been "a persistent under delivery" of housing, and there have been a number of appeal arguments on what that actually means, usually looking back over five to ten years.

A number of local authorities, particularly in the south-east, are also trying to limit their housing supply targets by reducing the housing targets that were set out in the previous Regional Spatial Strategies (RSS) and producing conservative demographic projections for new households. The publication of the 2011 census data is being particularly carefully studied in that respect and the final abolition of RSS, which is now in train, will also be important.

There is also a trend towards more “dispersal” strategies in Core Strategies, particularly in more rural authority areas, to both help rural communities retain services but also to mitigate the impact of the NPPF’s policy focus on delivery without overloading urban settlements with an infrastructure deficit.

A number of other local authorities have sought to bring forward a new consolidated 'Local Plan', combining Core Strategy strategic policies with development management policies. Whilst this has much to commend it in terms of simplification, it may take longer than a Core Strategy and so delay may cause exposure to the NPPF.

There are now a number of appeal decisions involving the NPPF to review. The NPPF has undoubtedly boosted the chances of success on appeal. There have been many arguments about whether a plan is out of date or not and the extent to which there is “limited” conflict or not with the NPPF.

There have also been lots of arguments about the robustness of the housing supply figures produced by local authorities. Most of the arguments to date seem to have been won by developers. However, there is currently an interesting legal challenge by Stratford on Avon District Council to an appeal inspector’s and Secretary of State’s decision which sought to prefer a housing supply target ahead of a Core Strategy Examination process to test the authority's housing supply. The legal challenge has been made on the basis that there was insufficient evidence for the Inspector and Secretary of State to come to that conclusion.

The NPPF imposes on authorities a 'duty to co-operate' on planning issues. Local authorities are asking how they can demonstrate they have met the duty to co-operate and what is meant by “effectively co-operated”. The answer to this is that the duty to cooperate is both a legal test, where you have to demonstrate how you have cooperated “constructively, actively and on an ongoing basis”, and a policy test of soundness.

The Planning Advisory Service (PAS) advises that there is a need to demonstrate whether plans have been positively prepared, based on a strategy which seeks to meet objectively assessed development and infrastructure requirements. This should include unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development. It also requires demonstrating that the plan is deliverable over its period and based on effective joint working on cross-boundary strategic priorities.

It is not going to be enough to list who and how often and even why an authority has spoken to others. What needs to be reported is the outcome of the cooperation, what has been resolved, what may still need to be resolved and how outstanding issues are to be resolved going forward, including dealing with alternative means of meeting the objectives if there is no resolution. It seems clear that in 2013 Development Plan Document evidence bases will start to see such documents as a Memorandum of Understanding or a Statement of Common Ground between those bodies subject to the duty to co-operate, more evidence of a shared or common evidence base, more agreed shared policies, or more aligned plans or joint plans.

On the legal challenge front it is also possible that 2013 will see a challenge to the lawfulness of the NPPF’s presumption in favour of sustainable development itself.

This could be to do with plan-making and could be based on an alleged incompatibility of the NPPF with the iterative Strategic Environmental Assessment (SEA) process to properly consider environmental impact and inform the plan. A similar point may be taken in relation to the application determination process and potential incompatibility with the environmental impact assessment (EIA) process.

The proposed amendments to the EIA Directive also need to be kept under review in this regard, particularly that the local planning authority may be able to decide what reasonable alternatives should be considered to the application, rather than the applicant setting out the main alternatives which have been considered.

A challenge could be based on an alleged breach of the Aarhus Convention for failure to provide access to justice in environmental matters. This could allege that the environment is inadequately protected by the NPPF and its impact assessment was flawed.

A short term legal challenge risk during 2013 may be an allegation that the NPPF's presumption does not adequately protect the environment in a 'perfect storm' of uncertainty, referring to any continuing failure of RSS abolition, uncertain housing targets prior to Core Strategy examinations, and claimed inadequate transition periods in the NPPF.

We also look forward in 2013 to a full list from DCLG of previous planning documents now revoked as a number still do not appear in the Annex 3 list and perhaps a new Plan Making Manual updated to reflect the NPPF.

2013 could be the year when the NPPF really bites and some fireworks will no doubt ensue as a result.

Richard Ford is a planning law expert at Pinsent Masons, the law firm behind Out-Law.com