As the end of 2015 approaches it provides the ideal time to review the existing position of the NPPF and the decisions and judgments that have had influence on interpreting its content and its use within planning decisions. As one would expect over 3 years into its existence, the Framework is a different beast from that which was originally delivered as a streamlined, incentivising document meant to free developers from the shackles of the voluminous PPS/PPG’s. Part 1 concentrates on Paragraph 14, whilst Part 2 will look at housing supply in relation to Paras 47 and 49.
Again, fuller analysis of the implications are encapsulated within my seminars for the professional industry across the 2015/16 period, details of which can be found elsewhere on the website.
What is clear that outside of housing supply specific paragraphs, Paragraph 14 is the sole one providing clarity on the approach that should be taken by both decision makers and professionals submitting applications. Hanging your hat on another paragraph without relating in back to Paragraph 14 has proved a fruitless exercise.
Para 14 – “Decision Taking”
The decision taking half of Para 14 has three definitive sections each providing elements that have been subject to change. In section 1, the phrase “Where the development plan is absent, silent, or relevant policies are out of date” is one which is soon to be subject to challenge, as two cases to be heard in January may pave the way for a change to the way “out of date” is to be interpreted in future. The initial expectation was that “out of date” would relate to a time expired approach; i.e. if a Local Plan significantly pre-dated the NPPF it could not be in date, as it had not included the requirements of the NPPF in its consideration. However Coleman  made sure this was not to be the case; with the ruling identified that “out of date” meant non-compliance with the NPPF. As such, a Development Plan could pre-date it but meet its requirements. If Coleman is to be superseded as the go to position on “out of date”, then its significance should not be understated in an environment where New Local Plans are comprehensively behind schedule.
Section 2 refers to the part one of bullet point 2, namely not granting permission where “the adverse impacts of doing so would significantly and demonstrably outweigh the benefits”. The mechanism implies that a full balancing exercise should be undertaken, where by the quantum of impacts for all material considerations (and therefore identified weight) should be assessed to identify the weights associated with both beneficial and adverse impacts. This exercise is one which for one reason or another still sits uncomfortably with Local Authorities; it is rare for a full balancing exercise to be undertaken by an officer even where it is clear one is required and it is often only in appeals were the planning professionals approach to planning weight is critiqued by an Inspector. This is clearly not sufficient and is contributing to the number of decisions being appealed, and subsequently, being upheld. Even where such balancing exercises are undertaken at Local Authority level, the approach appears to be that if detriment outweighs benefits, it is sufficient to refuse an application. However, the term “significantly and demonstrably” is clear in its approach, and this has been underpinned by numerous decisions, stated that “clear blue water” needs to sit between the harm and benefits for the negative weight to be proved. If the volume of unnecessary appeals made to the Secretary of State is to reduce, lessons need to be learnt at a local level to make sure the balancing exercise and the conclusions taken from it, are robust in underpinning decision making.
Section 3 refers to part two of bullet point 2, namely the caveat of granting permission unless “specific policies in this Framework indicate development should be restricted” together with the informatives of Footnote 9. The footnote in this instance appears to provide clarity, it can be seen that policies relating to a protective designation are those solely to be used in this instance, opening up “none protected” land and sites to the mechanisms Paragraph. However, the footnote states only to be providing examples, and as such Local Authorities have been keen on using any policy to which an application does not accord as meeting the bullet points requirements. An approach of course, which is considered an obstinate one by those making the applications and one which is out of keeping with the original proactive nature of the NPPF; again resulting in unnecessary appeals being made. A decision providing clarity to footnote 9 would be most refreshing for the sector and one which I hope, whenever it comes, will bring its use back to its original intentions.
The NPPF is shaping up to be a different animal from that which was intended, and the use of Paragraph 14 provides a perfect snapshot of the current issues to hand. It is hoped that decisions will soon impact on both the “out of date” and footnote 9 issues to the benefit of the developer, and in the meantime we can only persevere in hammering home the need to assess applications robustly at a local level.
MRICS BSc (Hons) RICS Accredited Expert Witness
NextPhase Development Ltd.