Friday, 30 September 2011

NPPF - The National Trust wish list

I wrote recently that my colleague David Brock and I tend to blog on different subjects, but it seems that we have both independently hit on the same topic, probably because we both got emails direct from the National Trust yesterday (as authors of our respective blogs) telling us about their list of 10 planning ‘asks’ to the government.

David was quicker off the mark than me and got his response to this document out this morning, but even though our views are remarkably similar, I still think it is worth publishing my own response here. If you would like to compare this with David’s version, just click on the link on the sidebar.

Taking each of the NT’s points in turn, they are asking for:

1. Confirmation that the planning system should not be used as a blunt tool to ‘proactively drive development’.

They say that the guiding principle of planning has been to act in the public interest, balancing the needs of people and the environment with those of the economy. The NPPF, they say, should be rewritten throughout to make it a balanced document. Frankly, I do not accept this ‘take’ on the NPPF. As I have pointed out elsewhere, it is the omission of some of the detail which is to be found in current ministerial planning guidance which has largely been the source of the anxieties which have been expressed. In practice I think these concerns are unjustified; but in any event the government (any government) is fully entitled to tailor its ministerial planning policy to reflect its strategic aims. The Thatcher government did this in the early 1980s, and there is no reason why the present government should not do the same. The NT is being somewhat naïve if they think that government planning policy should be neutral or should be tilted towards preserving the status quo.

2. Clarification of how planning should promote genuinely, robustly defined, sustainable development.

This is another forlorn plea for a statutory definition of ‘sustainable development’. I fear the NT is likely to be disappointed. The term ‘sustainable development’ is already well understood, and is derived (as David has pointed out) from the Brundtland report and was adopted by the government some years ago. I confess to being somewhat sceptical about the practical application of the concept, but that is another matter.

3. Clause 130 of the Localism Bill, (Applications for planning permission: local finance considerations) should be removed. Financial payments should not be a material consideration in planning decisions.

Clause 130 is admittedly controversial, and I do have some misgivings about it. It is unlikely, however, that the government is going to be persuaded to retreat on this clause. So far as planning law principles are concerned, it is well settled law that financial considerations are capable of being a material consideration and so there is no legal objection to such considerations being taken into account in determining planning applications.

4. The NPPF should see no diminution of protection for designated countryside and heritage; and planning should continue to protect the wider countryside ‘for its own sake’.

I do not read the NPPF as leading to any diminution of protection for designated countryside and heritage. There are already policies in place (which will continue) which seek to protect the best and most versatile agricultural land. There are also strong landscape designations, such as National Parks and AONBs. The NPPF will not change this.

5 The NPPF should adopt an explicit ‘brownfield first’ approach.

This policy (which was pursued by the last government) has led directly to the chronic housing shortage the country now faces. There are many ‘brownfield’ sites which are seriously contaminated and which cannot be viably developed, or which are located in places where there is no market for housing. Like it or not, we have no choice but to build houses on green field sites, and lots of them.

6 The NPPF should provide a five year supply of land for housing, but the requirement to identify an additional 20 per cent of land should be dropped.

This is an essential element of the government’s new policy for growth, and is very much in line with the policy adopted over 30 years ago in Circular 9/80. There is an urgent need for a substantial increase in house building. The government is entirely right in seeking to ensure that the planning system delivers it.

7 The default ‘YES’, and requirement to grant permission where a local plan is out-of-date, indeterminate or silent, is irresponsible and must be removed.

This is nothing new. It has been a feature of government policy for many years. It is simply a timely reminder that where there is no up-to-date development plan in place, development should not be hindered or prevented as a result of that. Where, however, a new development plan is reasonably close to adoption, development in advance of it might well be seen as premature, and the Cala Homes appeal decision this week is a striking example of this. The NT’s anxiety is therefore misplaced.

8 Localism should be real: communities should be given genuine power to shape their area for the better.

There is already substantial community involvement in the plan-making process, and the Localism Bill provides a mechanism for even closer participation in plan-making at the local level. There is also considerable community involvement in development control issues at the local level, and that will continue. It is difficult to understand what the NT is asking for which is not already there either now or in the Localism Bill itself.

9 It is fundamentally wrong that neighbourhood plans should be led and funded by business. It should be a core principle of the reforms that any plans, whether at neighbourhood or local authority level, should be genuinely community led.

There seems to me to be absolutely no reason to exclude the business community from the promotion and formulation of neighbourhood plans. Local businesses may well have much to contribute to the process. The idea that planning is for residents only and not for local businesses is one which I fundamentally reject. Commercial enterprises are an essential part of the community and it is right that they should be able to shape neighbourhood planning like any other members of the community.

10 There should be a limited third party right of appeal, in circumstances where consent is granted for development that is inconsistent with the local plan. This should be guaranteed by the Localism Bill.

The Conservatives originally included a similar proposal in their pre-election “Open Source Planning” ‘green paper’, but when the practical consequences were spelt out to them, they very sensibly backed away from the idea. It might give me a useful source of additional work as a planning lawyer but, looking at it objectively, such a procedure could be extremely damaging to development and economic growth. Section 38(6) of the 2004 Act provides that planning applications are to be determined in accordance with the development plan “unless material considerations indicate otherwise”. There is bound to be a significant number of cases where planning permission is legitimately granted for that reason. Is it seriously suggested that every such planning permission is to be open to challenge and the material considerations which led to its being granted pored over and examined in an appeal? The government would be very ill-advised to accede to this suggestion, and in view of their understandable anxiety to promote economic growth and development it is very unlikely that they would be persuaded to make yet another U-turn on this issue.

I am bound to say that the document which they have issued does nothing to enhance the credibility of the National Trust. It shows a fundamental lack of understanding of the nature and purpose of the planning system, and a degree of political naïvety which is surprising for such a long-established organisation. One can only assume that it amounts to opportunistic ‘grandstanding’ in an effort to raise the public profile of the Trust. I know that I am not alone in expressing concern that the Trust should act in this way.


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