A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

NPPF published

So the NPPF was finally issued yesterday.  At 59 pages, even the most hardened critic must welcome it.  At last we can say goodbye to the pages of repetition of law and policy in the old PPS series. There is a helpful and explicit list of what has been abolished at the end, beginning with PPS1. And of course, the NPPF includes the presumption in favour of sustainable development.

There is a time and a place (not here) for exhaustive commentaries (and a few weeks ago I did get a letter from the Planning Inspectorate asking if I was proposing to do a comparison with the old policies so as to see what had changed, and if so could I help with theirs).  This post is going to be about big points only.

First, I am struck by the frequent use of the word “positive” – positive planning, plan positively, positive growth, taking a positive approach to sustainable new development  and so on.

Second, we will have to learn when a plan is silent or its policies are out of date because in those cases the presumption allows development to go ahead, unless adverse impacts outweigh benefits or it is contrary to the NPPF

Third, the transitional provisions are very interesting.

Taking these in turn, the emphasis is on positive planning. Greg Clark was engaging about this in the House introducing the NPPF yesterday.  He supports growth to give the next generation homes and jobs, and wants to improve our countryside towns and cities.  And he is passionate about putting (in his words) “unprecedented power in the hands of communities to shape the places they live” but experience just does not suggest that in practice communities want to implement his aspirations.

When is a plan silent or out of date?  A plan which is a day old should not be followed if a new and relevant material consideration comes along.  But “out of date” is the wrong test. The oldest of old plans must be followed, unless material considerations indicate otherwise.  True, an old plan is likely to have been overtaken by many new material considerations and so be “out of date”. But using the colloquialism in one of the most significant policies on planning ever produced, may cause difficulties.  Silent may be difficult to interpret as well – few plans have nothing which can be applied to a development proposal.

Which leads naturally to the transitional provisions.  In brief they tell us that the policies apply from the date of publication; that local plan policies should not be considered “out-of-date simply because” they were adopted before the NPPF was published; and that for twelve months from publication, decision makers “may” give weight to policies adopted since 2004 even if there is limited conflict with the NPPF. They tell us that from now, emerging plans can be given weight according to how consistent they are with the NPPF; and after the twelve months, the weight to be given to existing plans is dependent on their consistency with the NPPF.

The words which interest me here are “may” and “simply because”.  “May” suggests that decision makers are free to apply NPPF policies if they wish; they’d have to have good reasons.  But a plan is not to be considered out of date “simply because” it was adopted before the NPPF was issued.  Does this mean that there might be other reasons why the plan should not be followed?  That would be right, other material considerations.  What might a good reason and material consideration be?  Might the actual policies of the NPPF constitute a good reason?  Paragraph 212 of the NPPF (coming between “simply because” and “may”) says that the NPPF policies are material considerations “to be taken into account from the day of its publication”.

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