You've been framed

Planning law is facing its biggest shake up in a generation. But will the coalition's flagship National Planning Policy Framework (NPPF) be a developer's dream or a BANANA delight?

More bananas later. Consultation has now ended in the most radical change in planning policy for decades. The draft NPPF is anything but tentative. A presumption in favour of sustainable development is to be the 'golden thread' running through all plan making and decision making. Planning authorities are to be told they 'should approve all individual proposals whenever possible' and more insidiously 'approve development proposals where the (local) plan is absent, silent, indeterminate or where relevant policies are out of date'.

Unsurprising then that some foresee massive development in previously protected rural areas. There is talk of concrete covering England's green spaces, and there has been a well-organised furore over a planned eco-village of 3,700 homes in my practice's backyard of East Coker, last resting place of Thomas Stearns Eliot. But will it happen? Is the new 'presumption' the key that unlocks development in the countryside?

A presumption in favour of development is not new. Many practitioners will remember that it was enshrined in the late lamented Development Control Policy Note 2 and was much loved by appellant's advocates. It was not a silver bullet then and the new presumption in favour of sustainable development may not be a silver bullet now. Presumptions can be overturned and damage to amenity and the character of the landscape have until now always been recognised by decision makers as material considerations. But the interplay between the NPPF and the coalition's localism agenda may change that.

Planning minister Greg Clark says that 'the main purpose of the presumption in favour of sustainable development is to determine applications only where no plan is in force'.

The NPPF requires that: 'All plans should be based upon a contained presumption of sustainable development as their starting point, with clear policies that will guide how presumption will be applied locally.' This points to a critical flaw in the current reforms. The NPPF is unashamedly designed to promote growth. The minister's introduction to it is quite clear about this: 'Sustainable development is about positive growth'¦ and the planning system is about helping to make this happen.'

The NPPF sets out to provide 'a framework within which local people and their accountable councils can produce their own distinctive local neighbourhood plans'. It assumes that neighbourhoods and their accountable councils will want to see growth. But do they? Do they want to see development on greenfield sites in their immediate locality? Not in my experience. Martin Sowerbutts, the secretary of the East Coker Preservation Trust, told the BBC: 'There's an enormous amount of concern and outrage in the parish that South Somerset District Council want to build here.' I expect other parishes and neighbourhoods to take a similar line when faced with development proposals, eco-friendly or not. And I doubt that many will seek to initiate them as the localism bill envisages.

Restricting debate

The current reforms effectively replace the regional tier of planning control and its current regional spatial strategies with a new neighbourhood tier. Will that encourage strategic thinking, and, to use a maligned but accurate word, actual planning? Time will reveal, but I think not. There is no inducement or opportunity for neighbourhoods to think strategically and the quality of debate and decision making seems to decrease with each descending layer of local government. I suspect that the day after tomorrow will belong to the BANANA tendency '“ the provisional wing of the NIMBY army who believe in 'Building Absolutely Nothing Anywhere Near Anyone'.

In the long term the combination of the NPPF and the localism bill must fail to achieve the growth it seeks if it truly devolves decision making to neighbourhoods. That does not, however, mean that these planning reforms will restrict development in the short term. Tomorrow itself may belong to the astute developer.

The current reforms are predicated on there being national and local policies and plans in place, setting a strategic framework within which neighbourhood plans and developments can operate. Greg Clark signs off his introduction to the draft framework in these terms: 'By replacing over 1,000 pages of national policy without around 50'¦ we are allowing people and communities back into planning.'

What he is in fact doing is removing a great deal of carefully worded and detailed national guidance, much of which has the benefit of years of judicial and inspectorial consideration, with 50 pages of generalised aspirations and a glossary.

Planning Policy Statement 13 on Transport, for example, was published only in January this year. Its 42 pages of detailed guidance will be replaced by just 14 short paragraphs in the NPPF.

Open opportunity

At the same time Clark introduces his new neighbourhood-based philosophy when one half of the country is without up-to-date and effective local plans. This will leave an inviting window of opportunity, probably at least 18 months to two years wide but in places wider, when canny developers can have their proposals assessed against a policy matrix consisting of just nine words: 'There is a presumption in favour of sustainable development.'

In the rural South West where my practice is largely based I expect this to result in not a flood, but nevertheless a significant increase in applications. Many are already in preparation. It will be a particularly auspicious time for 'marginal applications'. Developments that previously would not have been seriously entertained can be coated with a veneer of sustainability '“

low-carbon dwellings with elements perhaps of alternative energy and bio treatment '“ in attractive and therefore high-value areas of countryside, which for decades have sheltered under the protections of policies restricting development in the countryside to that necessary for agricultural and forestry.

Local planning authorities will generally try to uphold their worthy but by now rather dated local plan policies and refuse the applications. I therefore expect a marked increase in appeals particularly in public inquiries where the shortcomings of existing plans and guidance can be fully exposed.

All of which is good news for planning advocates. For us the challenge will be to push home this advantage when acting on behalf of appellants or to construct a credible defence from a limited and outdated armoury when acting on behalf of planning authorities. Most at risk will be neighbourhoods served by councils that have dragged their feet over the local development framework process set in motion seven years ago by the Planning and Compulsory Purchase Act 2004.

One such authority '“ far from the worst and cited purely because it is where our practice is based '“ is South Somerset District Council. T.S. Eliot's East Coker, site of the proposed eco-village, is in south Somerset heartland. Like half the country South Somerset District Council has no local development framework in place. It has no core strategy in place.

The life of its local plan was extended for three years beyond its natural life to 2009, and since then development control has relied on a limited range of 'saved policies'.

Like many other rural authorities, South Somerset District Council will struggle to demonstrate that it has an up-to-date local plan for the purposes of the NPPF. Its core strategy was originally due to be in place in 2012, but that was based on its publication in September 2011 and that did not happen. Its draft plan is based on consultation that is already three years old and there are several stages to go before it becomes an adopted document. Perhaps understandably in times of public sector cuts, South Somerset District Council displays no urgency. A report to committee due in September was postponed until next year. In the meantime it has many delightful villages set in equally delightful countryside, not all of which can rely for protection on the ranks of celebrities rallying to the defence of East Coker.

National Trust chairman Simon Jenkins says that planning lawyers will be 'rubbing their hands in glee and saluting Sir Eric [Pickles] and Sir Vince [Cable]'. He's right to a point '“ but who among us would not relish new opportunities to apply our skills in achieving the solutions our clients seek? It is a major reason for coming into the legal profession in the first place.

Change unlikely

Of course the draft National Planning Policy Framework is only a draft. The consultation process has resulted in strong criticism most publicly from the National Trust. Simon Jenkins describes the planning reforms as 'philistine, an abuse of local democracy and an invitation to corruption'; yet even he acknowledges the government's determination 'not to act as an impediment to growth'. I cannot foresee wholesale changes either in the NPPF or in its sister ship, the massive localism bill. The latter has so far changed little on its way through parliament.

The NPPF would need major amendment and expansion to overcome the fears of its critics. It would need to be delayed significantly, as the Law Society has urged, to allow cash-strapped local authorities to get their strategic plans in place. Neither is likely to happen. The 'golden thread' will not be unpicked. Yes, perhaps some transitional arrangements will emerge and perhaps the life of some of the existing guidance will be prolonged, but there is a determination behind these reforms. I believe they will be given their head.

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