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"Presumption-proofing" Neighbourhood Plans

Planning law states that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. Therefore, where a planning application conflicts with an up-to-date Local Plan or any Neighbourhood Plans, permission should not usually be granted unless there are material considerations which indicate that a departure from the plan(s) would be appropriate.

In July 2018, government published a new National Planning Policy Framework (NPPF) replacing the previous 2012 framework. The NPPF is potentially one form of ‘material consideration’. The current (and former) NPPF includes a 'presumption in favour of sustainable development'.

The ‘presumption in favour of sustainable development’ applies where there are no relevant development plan policies, or the policies which are most important for determining applications, including housing development, are out-of-date

Crucially, the NPPF considers plans to be out of date where the local planning authority cannot demonstrate a five year supply of deliverable housing sites, or where the Housing Delivery Test indicates that the delivery of housing was substantially below the housing requirement over the previous three years.

The effect of the ‘presumption in favour of sustainable development’ is that for areas where past housing delivery has been poor, planning policies contained in Local Plans and Neighbourhood Plans may carry less ‘weight’ in the decision-making process than if the area’s housing requirements were being met.

The result of applying the 'presumption' is that new development is being permitted in locations where growth would otherwise be restricted by Local and Neighbourhood Plans.

Perhaps in recognition of the controversy such applications create at a local level, the NPPF notes that the application of the ‘presumption’ has implications for the way communities engage in neighbourhood planning.

Through paragraph 14, the NPPF throws Neighbourhood Plans a lifeline in situations where the 'presumption' would usually apply - subject to the following criteria being met:

  • the neighbourhood plan became part of the development plan two years or less before the date on which the decision is made; 
  • the neighbourhood plan contains policies and allocations to meet its identified housing requirement; 
  • the local planning authority has at least a three year supply of deliverable housing sites (against its five year housing supply requirement, including the appropriate buffer as set out in paragraph 73); and
  • the local planning authority’s housing delivery was at least 45% of that required over the previous three years.

The NPPF indicates that where the above criteria are met, in situations where the ‘presumption’ applies to applications involving the provision of housing, the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits. It is reasonable to conclude that such proposals would likely be refused.

Most of the criteria in para 14 are outside the control of Parish Councils / Neighbourhood Forum, and therefore offers few guarantees the Neighbourhood Plan will hold weight when it matters.

Crucially, the policy requires Neighbourhood Plans to make policies and allocations to meet its identified housing requirement.

The local planning authority must therefore set a housing requirement (or indicative housing requirement) for the Neighbourhood Area.

Many Neighbourhood Plans choose to remain 'silent' on the issue of housing development - preferring to gently shape development, leaving the job of allocating sites to the Local Plan. Para 14 will likely change this, as neighbourhood planners take on the task of identifying sites in order to "presumption-proof" their plans.

It is unclear what the effect of para 14 might be. For many Neighbourhood Plans, they may simply attempt to reproduce the sites already contained in the Local Plan, resulting in frankly unnecessary duplication.

Perhaps neighbourhood planning will become more controversial, as Neighbourhood Plans attempt to tackle the issue of housing development head on?

How will the development industry react? Will neighbourhood planners face the battles at appeal formerly directed at the local planning authority?

As the Housing Delivery Test comes into effect, with increasing targets year on year, the likelihood of maintaining an up-to-date Local Plan will become ever more challenging. In areas with poor housing delivery, Neighbourhood Plans will form the front line in tackling the presumption in favour of sustainable development.

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