NPPF – the gift that keeps on giving
On 19 December 2023, whilst many of us were winding down for Christmas, Michael Gove was preparing his own gift, in the form of revisions to the National Planning Policy Framework. These changes followed lengthy consultation, and a lot of political noise, both from those wanting more housing, and those wanting greater controls on development. Key changes include:
- Changes to five year housing land supply requirements – the government has introduced a variety of changes which aim to increase the delivery of housing by incentivising local planning authorities (LPAs) to update their Local Plans. In particular, LPAs no longer need to continually demonstrate a deliverable five-year housing land supply provided they have an adopted plan which is less than five years old, and which identified at least a five year supply of deliverable sites when the examination concluded.
Consequently these LPAs will no longer be subject to the presumption in favour of sustainable development – known as the tilted balance – which applies when an LPA cannot demonstrate a five-year housing land supply.
- More flexibility in assessing local housing need – it is now clear that, in preparing local plans, LPAs should aim to meet “as much of an area’s identified housing need as possible,” and that the standard method for calculating housing need is “an advisory starting point.” This will mean that it is easier for LPAs to justify planning for fewer, or more, homes than would have been the case before these changes.
- Green belt adjustment – changes made it clear that an LPA can choose – but is not required – to alter green-belt boundaries as part of the plan-making process, where the requisite tests are met. Despite a lot of noise about green-belt protection, these changes in practice have little impact.
Many are concerned that, when taken together, this package of measures will actually result in the delivery of fewer homes, contrary to the government’s intention. Whilst the changes may focus LPAs on updating local policies, they not only provide ways to sidestep trying to meet full housing need, they also dilute the consequences for an LPA of failing to meet its own targets.
More NPPF changes to come
In February this year the government consulted on proposals to strengthen planning policy for brownfield development. In order to stimulate the development of brownfield land, the consultation proposes further changes to the NPPF which would:
- make it clear that, when determining planning applications, LPAs should give significant weight to the benefits of delivering as many homes as possible, especially on previously developed land;
- explain that LPAs should take a flexible approach in applying planning policies and guidance relating to the internal layout of development if they would otherwise inhibit making the most efficient use of a site; and
- introducing a presumption in favour of sustainable development on previously developed land where the LPA scores below 95% on the Housing Delivery Test, in specified urban uplift areas.
The changes proposed have the potential to make a real difference to the determination of planning applications, and appear to shift the balance, where applicable, towards maximising housing delivery, as opposed to optimising it. Whether, though, LPAs would be willing to embrace this approach remains to be seen.
Drop-in permissions – Dennis the Menace?
The stand-out decision of the first quarter of this year was that of the High Court in the case of R (Aysen Dennis) v LB Southwark and Notting Hill Genesis – the latest in a long line of judgments concerning overlapping planning permissions, scheme changes and the common practice of “drop-in” permissions.
We covered the detailed background in our previous pieces here and here.
The planning authority had granted a non-material amendment under section 96A of the 1990 Act to insert the word “severable” into the description of development of an outline permission for the phased redevelopment of the Aylesbury Estate.
The authority and developer argued that the outline permission was severable because it was phased – and that the purpose of the amendment was merely to make that clear on the face of the permission.
Treating the outline permission as severable would allow the developer to implement a drop-in permission to replace an existing phase of development with a new (otherwise incompatible) form of development.
The concept of severability was thrust into prominence by the Supreme Court’s decision in Hillside Parks. Although the Supreme Court didn’t opine on drop-in permissions in that case, some had taken the view that if a development was phased, it was likely to be severable, and could accommodate a drop-in.
The claimant argued that the outline permission wasn’t severable, and that the amendment to make it severable could not be treated as non-material.
The High Court found that on its true construction the outline permission was not severable before the section 96A amendment. It was a single planning permission with provisions for phasing.
To the extent that the amendment did sever the outline permission – and Holgate J wasn’t convinced it did so lawfully – its effect was to significantly enlarge the bundle of rights the permission conferred. This was a material amendment that went beyond the scope of the powers in section 96A. The claim was allowed and the purported non-material amendment to the outline permission quashed.
The decision in Dennis gives rise to some significant – and challenging – implications for those involved in significant regeneration and redevelopment schemes. As the dust settles, the development industry will welcome the government’s March 2024 consultation which seeks views on whether legislative intervention could help provide some certainty.
In the meantime, however, developers formulating strategies for major schemes will need to consider carefully how permissions can be future-proofed. Those with existing developments involving drop-in permissions will need to ensure the compatibility of their consenting strategy with the findings of the High Court. Please get in touch with your usual Hogan Lovells contact to discuss how best to navigate the current uncertainty.
Expanding the range of permitted development rights
The last 12 months has seen a succession of government consultations on amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) which seek to expand permitted development rights (PD rights) so that ever more types of development can be undertaken without needing to secure express planning permission.
Confirmed changes
Some changes have already been confirmed, including in respect of temporary use of land for filming activities, and expanded rights for the installation of solar panels. The most recent changes, which came into effect from 5 March 2024 confirm the removal of (i) the 1,500 square metres maximum building size threshold, and (ii) the 3 months prior vacancy period requirement from the existing Class MA PD right for changes of use from Class E commercial buildings to residential. The consultation on this had also sought views on extending the rights to include buildings located on Article 2(3) land (protected land), but this restriction has remained unchanged.
Prior consultations but responses awaited
Full responses are still awaited on two further consultations:
- (held between April to June 2023) – this had set out proposals for new PD rights linked to suggested use class changes associated with short term letting, but the response to this is still awaited. The suggested changes are intended to retain existing flexibility for using domestic buildings for short-term letting, but give powers to local authorities to restrict this through the use of Article 4 Directions to address local issues and concerns on the effect on the housing sector.
- (held between July and September 2023) - this had views on additional flexibility to support housing delivery, the agricultural sector, high streets and open prisons, including:
- whether PD rights subject to prior approvals in respect of design and external appearance should be amended to consider local design codes (where adopted);
- possible expansion of building types/uses that could benefit from PD rights to change to residential (such as hotels and certain commercial buildings on protected land);
- proposals for expanding the range of commercial and mixed-used buildings to be included in the existing PD rights that enable residential uses above certain commercial premises, and increasing the permitted number of flats from 2 to 4;
- whether to increase the maximum area thresholds for permitted extensions to existing Class E premises from the lesser of 50% or 100 square metres to the lesser of 100% or 200 square metres, and for existing Class B2 and B8 buildings from the lesser of 50% or 1,000 square metres to the lesser of 75% or 1,500 square metres;
- proposals to increase the maximum size for new B2/B8 buildings that can be built pursuant to PD rights from 200 square metres to 400 square metres; and
- various proposed changes in respect of agricultural buildings (including expanded rights for changes of use and for flexible uses).
Latest consultation to further extend permitted development rights
The government has launched its latest public consultation (running from 13 February 2024 to 9 April 2024) which proposes further changes to PD rights, including:
- various changes to PD Rights associated to householder works, including larger rear extensions, increased overall area thresholds, and potential for wrap-around extensions;
- changes to the existing PD rights associated with upward extensions, including whether the restriction that the building must have been constructed after 1 July 1948 be removed or pushed back to 1930; and
- changes to the existing PD rights that allow for demolition of existing buildings and construction of new dwellinghouses, which would remove the existing limitation that the existing building must have been built prior to 31 December 1989, but would then include a new restriction on demolition of buildings constructed prior to 1930.
PD rights are clearly one of the tools that the government sees as helping to simplify the planning process and speed up many areas of development. However, over-extending the scope of PD rights can cause inadvertent impacts (such as some of the early examples of office to residential conversions). While the prior approval process was always intended to be relatively straight forward, the perceived need to expand the factors to be considered for certain works can start to feel closer to being a mini (and often complex) planning application in its own right. PD rights can extremely useful, but there is a need for balance and pragmatism.
Consultation on an “accelerated planning system”
In a bid to streamline the development management process and spur timely decision-making, the government has published a consultation on its proposals for an accelerated planning system. The consultation runs until the 1 May 2024. The consultation contains four key proposals to speed up planning decisions.
- Accelerated Planning Service
This would offer a new application route upon payment of a higher application fee with accelerated decision dates for major commercial applications and fee refunds wherever targets are not met. Qualifying applications using this route would be prioritised by planning authorities and, using a more efficient case work system, be determined within a new 10-week statutory time limit (rather than the current 13 weeks). Eligibility for this service would be limited to planning applications (including s73 and s73B applications) for more than 1,000 sqm of new or additional employment floorspace, either in isolation or as part of a mixed-use development.
However, planning applications for development subject to an Environmental Impact Assessment, proposals involving heritage assets, retrospective development or minerals and waste development, or those that are subject to a Habitats Regulations Assessment would not be eligible for this service – even though these are often the most complex types of application and most likely to suffer from delays.
- A performance measure for local authorities to avoid designation
The new metric stipulates that a minimum of 50% of major applications and 60% of non-major applications must be determined within the statutory time limits. The proposed thresholds do not exclude the use of extension of time agreements and planning performance agreements, but the expectation is that such agreements are used only in exceptional circumstances. Performance data on the proportion of major or non-major applications that are determined within the statutory time limit, or an agreed extended period, will continue to be published. Failure to meet these thresholds by the local planning authority could result in designation, granting applicants the option to seek decisions directly from the Planning Inspectorate. To enhance accuracy, the assessment period for decision-making, currently spanning 24 months, would be reduced to 12 months.
Although extension of time agreements and planning performance agreements would still be permitted, they would be regarded as exceptions rather than standard practice. There is concern that extension of time agreements are being used for smaller and less complex householder applications, without good reason, to compensate for delays in decision-making and poor performance. Thus, the consultation seeks views on potentially prohibiting these agreements for the same application.
- Expansion of expedited written representations procedure for appeals
The expansion of the scope of appeals covered by the expedited written representations procedure is intended to speed up decisions on most planning appeals, excluding non-determination appeals and enforcement notice appeals. The expedited process proposed would eliminate the consideration of additional information at appeal, offering a quicker alternative to the standard written representations process. It should be noted, however, that this process is already in place for certain appeals.
The Planning Inspectorate would retain discretion in determining the appropriate appeal procedure, recognising that the simplified process may not suit all cases. While this is good news for those involved in smaller-scale or straightforward appeals, it will not affect the more complex cases that are dealt with in hearings or by public inquiry.
- Details of the new s73B route to amending permissions and the treatment of overlapping permissions
Section 73B of the 1990 Act would permit amendments to existing planning permissions, offering more flexibility than Sections 73 and 96A by allowing changes to both the development description and conditions, provided they are not substantially different from the original approval. The government anticipate that this will become the default route for material variations to existing planning permissions, reserving Section 73 for changes to specific conditions. The government recognises, however, that the absence of guidance on defining "substantially different" is likely to lead to uncertainty – and it’s seeking views on whether guidance should encourage a common approach across local planning authorities.
The consultation proposes using Section 73B to address the issues arising from the Hillside and Dennis judgments, by adjusting outline permissions for master-planned projects, focusing only on changes from the original permission. Another option suggests creating a framework through a new general development order to grant permissions for specified or class-based developments. Limited detail has been given about this option; it would need careful drafting and clarity about when it applies. Thus, it is unclear whether this is the silver bullet the industry was hoping for.
There is of course much more…
The above updates are really only a slimmed down selection of changes and proposed changes. And all this is without even mentioning the coming into force of BNG here, the changes we’re starting (slowly) to see as a result of the Levelling-up and Regeneration Act 2023 here or the possible implications of the general election, when it does finally come around.
It seems safe to say that it will be some time until we start to see the stability many of us want for the development industry in the UK. Whatever changes do come our way, though, we in Hogan Lovells Planning will be here to keep you up to date.
Authored by Hannah Quarterman, David Wood, Robert Gowing, and Shehrbano Pataudi.
