Most of us downloaded the draft NPPF on Monday and came to a quick conclusion that it contained a new drive for plan making, a ratcheting up on housing delivery for local authorities and an uncomfortable reorganisation of the priorities and policy expectations of the March 2012 version.
That discomfort is at its most acute in review of the new paragraph 14, which is now rejigged as paragraph 11. This paragraph alone has been the subject of five years of repeated litigation in the High Court and Court of Appeal and also a sojourn to the Supreme Court. The last outing identified what this paragraph in combination with the now deleted paragraph 49 actually meant, warts (or more precisely footnotes) and all. The fact that the Government have now decided to re-write this most contested section of the NPPF, can only mean that they didn’t like what they have been told it means or, put another way, that they just got it wrong.
The key drawback (or if you’re the Government possibly the key benefit) of the English planning system is it a murky mix of law and policy. We can see this in the policy changes to the local plan system within Chapter 3 of the draft NPPF. There are some fundamental changes here to the operation of the planning system which are delivered by policy alone, there is no hint of new legislation and with the best will in the world this will inevitably create problems down the line.
Let us take for example the concept of Statements of Common Ground. This is a non-statutory concept that is to be utilised to ‘demonstrate effective and on-going joint working’ and ‘strategic plan-making authorities should prepare one or more’ to document ‘cross-boundary matters’ (paragraph 29). They are also to be deployed to assist in the objective assessment of housing needs (footnote 6) and in meeting identified development needs in the Green Belt (paragraph 136).
They are, in short, quite important documents in the delivery of the new regime. However, in the absence of any statutory requirement they can be knocked up by local authorities at whim; they can be changed repeatedly; they can be entirely contradictory in their multiple forms when prepared with a range of neighbouring authorities and, ultimately, they can and will be completely discredited.
There are inevitably other similar issues with this policy led approach, which will strain in operation within the confines of the existing statutory framework. You do, however, have to have some sympathy with MHCLG given the limitations on Parliamentary time as the Brexit process unfolds.