NPPF needs changes to avoid a "substantive period of litigation", the Law Society warns

In a response to the draft NPPF consultation the Law Society has identified problems that it said would result in an inconsistent application of planning rules that would create uncertainty.

The Society argues that if the term "sustainable development" is not defined, authorities and the Secretary of State (SoS) will adopt an inconsistent approach to planning decisions. This will create uncertainty and "the result will be an increased number of appeals and court challenges", the Society said.

The Society said that it is not clear how the NPPF is to apply in relation to other decision-making duties that are contained in statute. The response recommended that further consideration is given to how the proposed presumption in favour of sustainable development should be applied, especially in relation to when the development plan is "out of date".

The Society warned that the wording of the presumption should be addressed it seeks to alter the 'balancing exercise' of decision makers in relation to material considerations.

The NPPF states that it is to be regarded as the default plan where existing development plans are out of date. The Society therefore argued that the NPPF itself should be subject to a 'Strategic Environmental Assessment', just as local development plans currently are.

Following the closure of the draft NPPF consultation period, the Government announced that it would introduce a "transitional period" to allow local authorities time to produce a core strategy.

The Law Society strongly supportsthe decision to introduce a transitional period, in order to safeguard the majority of councils that do not have an up to date development plan, the consultation said.

The Society recognises that developers "are undoubtedly regarding that window [where development plans are out of date] as an opportunity to bring forward applications and appeals in the hope that they can secure consent during a period of unsettled policy", it said.

Without a transitional period councils are likely to "adopt a safety-first approach" through fear of successful appeals resulting in an award of costs against the authority, it said.

The Society's response said that it supports the Coalition's aim to condense existing policy into a concise and cogent single National Planning Policy Framework (NPPF), but said that further consideration needed to be given to the matters it has highlighted, the consultation response said.