Uncharted territory

The draft National Planning Policy Framework (NPPF), published for consultation by the Department for Communities and Local Government on 25 July 2011, has sparked a highly contentious debate in the public arena. Once adopted, the NPPF will replace all previous planning policy guidance and planning policy statements '“ thereby replacing over 1,000 pages of current planning policy with just 52 pages. In launching the NPPF for consultation, Greg Clark said: 'We need a simpler, swifter system that is easier to understand and where you don't need to pay a lawyer to navigate your way around.' According to Eric Pickles, the secretary of state, the planning Bar is full of overpaid Italophiles: 'I don't see a system that allows planning silks to buy a Maserati or spend an extra week at their villa in Tuscany as one that is going to improve the lot of my fellow man.'

Those positioned against the changes warn that they will result in 'a lawyers' bonanza', while those in favour claim that the simplification of government policy will allow people and communities back into planning, and remove it from the exclusive preserve of specialists. The Planning Advisory Group, established to advise upon the contents of the NPPF, did not include a single practising planning lawyer. What then, will be the impact of the NPPF from the planning Bar's perspective?

Sustainable development

Under the NPPF, much depends upon whether a particular development proposal can be said to be sustainable. The document includes the phrase 'sustainable development' no less than 44 times; nevertheless, it leaves the reader unsure of its precise meaning. It will be vital for all involved in the planning system to have a clear understanding of what the phrase means. Legal argument on the subject will inevitably abound.

Paragraph 9 of the NPPF provides the following definition: 'Sustainable development means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.' In so doing, it reverts back to the traditional Brundtland report definition of sustainable development, rolling back the experience of much case law and policy, including the definition in Planning Policy Statement 1: Delivering Sustainable Development (PPS1) 2005. The Brundtland definition states that people must only satisfy their basic needs now without preventing future generations from also having the same quality of life. It rests on three 'pillars' '“ economics, society and the environment '“ along with the concept of social justice.

It is difficult to see how such a definition will assist a decision maker in determining, in practical terms, whether or not to allow a particular development. It seems likely that every application for planning permission and every appeal against refusal will seek to portray the proposal as sustainable development. We know that development likely to have a significant effect on sites protected under the birds and habitats directive is not sustainable development, and that new buildings in the green belt will continue to constitute inappropriate development. Other than that there is a conspicuous absence of clarity as to what sustainable development is. Greg Clark said that he didn't want to pre-empt the result of the ongoing consultation, but argued that the final NPPF will contain a definition which is more advanced.

The NPPF and the NPPF impact assessment appear to equate sustainable development with economic growth. Indeed it has been suggested that the policy provides a presumption in favour of development per se, and it is true that the sustainability element of the policy is a somewhat woolly concept which all parties will inevitably seek to fashion into a defence of their own position.

Absence of detail

The lack of detail in the NPPF policy certainly makes it more readable than the proliferation of national policies it replaces, but it also makes it more open to legal argument about its interpretation. The result is likely to be an increase in appeals and legal challenges. For example, while PPS4 makes it clear that in rural areas part of the delivery of sustainable economic growth involves exercising strict control over economic development in open countryside away from existing settlements, and locating most new development in or on the edge of existing settlements, the NPPF simply tells us that local planning authorities should plan for new development in locations and ways which reduce greenhouse gas emissions. Any carbon efficient development could potentially satisfy this requirement, regardless of whether it is located in the open countryside away from existing service centres, or is only accessible by car (even a Maserati).

Much of development control is subject to legally binding environment legislation which is beyond the control of the coalition government, such as the environmental impact assessment directive, the strategic environmental impact assessment and the habitats directive. Specialist legal advice in these areas will be ever more critical.

Local plans

The NPPF is likely to result in more appeals against refusals of permission. While local planning authorities will be disposed towards a local interpretation of sustainable development, developers will feel more confident in appealing against those decisions, in the knowledge that the secretary of state is likely to take a broader, more national view of the meaning of sustainable development.

There will also be an inevitable rush by developers to make applications before up-to-date local plans are in place, in order to benefit from the requirement in paragraph 14 of the NPPF, which states that where a plan is absent, silent or indeterminate, or where relevant policies are out of date, planning permission should be granted, except for where the adverse impact of allowing development would significantly and demonstrably outweigh the benefits. The impact assessment acknowledges that around half of local councils do not have a published core strategy, and less than one third have an adopted core strategy. It sees the policy in paragraph 14 as a 'stick', to encourage local plans to be brought forward. Given the limited resources available to local authorities, it seems that many will be beaten by that stick into allowing development which they consider to be inappropriate.

While the NPPF enables local authorities to seek certificates of conformity with the NPPF, they are not required to do so. Where no certificate has been granted, there will be legal argument as to whether the local plan is in accordance with the NPPF. Developers with proposals contrary to the local plan will be in an advantageous position if they can establish that the policies of the plan are out of date or indeterminate, and much time will be spent in arguing these points. Even where the local authority considers that its plan is up to date, developers will feel more confident in appealing against their decisions, in the knowledge that if they can persuade the secretary of state the local plan is out of date or silent or indeterminate, permission will be granted.

Unpredictability

PPS1 explains that the plan-led system aims to provide certainty and predictability. The NPPF impact assessment acknowledges that a less detailed and prescriptive form of national policy is likely to lead to greater local variations. This will create uncertainty and could potentially increase costs for local councils and applicants. Inevitably the introduction of any new national planning policy will lead to a period of uncertainty as to its application. In the case of this particular policy, it seems unlikely that the uncertainty will abate significantly as the policies are tested. Much will depend on the particular local plan and lawyers will seek to distinguish unfavourable decisions on the basis that they rested on particular provisions in particular local plans. The government's statements promoting the concept of localism has created expectations among local residents that are likely to lead to disappointment and possible judicial reviews of consequent planning decisions.

An arguable point

Under the NPPF, so much depends on whether a particular proposal can be said to be sustainable development that every applicant and every appellant will argue the point. The wide definition provided in the NPPF will do nothing to restrict such arguments. The absence of detail in the NPPF certainly makes it a more readable document than the policies it replaces, but the result will be that there is more room for legal argument in interpreting its policies. It seems that the lawyer's navigation services may yet be required as we move from familiar streets to uncharted territory.