Decision-making policies

Chapter 3 proposes to recast the current NPPF’s decision-making principles into a clearer set of general and cross-cutting national policies. It notes that, as the planning application process is primarily governed by statute, the policies in this chapter must be read alongside wider legal requirements.

Preparing development proposals

DM1 revises the current NPPF to emphasise proportionality, particularly for smaller-scale development. Pre-application engagement is refocused on major development, with such applications required to include a planning statement covering compliance with the development plan, engagement undertaken and use of planning obligations. Smaller proposals would require less information and engagement.

Question 21: Do you agree with the principles set out in policy DM1?

Agree – particularly with the statement that proposals for non-major development should be supported by the minimum necessary information requirements to support a decision. The burdens on smaller developers and SMEs are broadly accepted as an impediment to housing delivery. Having a more streamlined pre-application and validation process for smaller developers will help to speed up application submissions and reduce costs. 

Information requirements

Policy DM2 promotes a more consistent and proportionate approach to local information requirements, ensuring minor and medium development are not subject to excessive burdens. The government is consulting on whether a regulatory approach might provide greater certainty as an alternative.

Question 22: Do you agree with the policy DM2 on information requirements for planning applications? 

Partly agree. The same point applies as above in being sensible about the level of information required regarding impacts of smaller developments. However, please see our response to question 23 below about the benefit of dealing with validation requirements via regulations instead of policy. 

Question 23: Do you have any views on whether such a policy could be better implemented through regulations? 

When it comes to validation requirements, we consider this is something that could be dealt with by appropriate regulations rather than policy. This would give even greater certainty, at a national level, as to what is required for any planning application to be accepted and avoid different local authority areas adopting differing approaches, with the consequent uncertainty and delays that can arise from that. 

Determining development proposals

Policy DM3 reinforces the expectation that local planning authorities take a positive, proactive, and proportionate approach when determining applications, working collaboratively with applicants and making timely decisions, including where statutory consultee responses are delayed.

Question 24: Do you agree with the principles set out in DM3? 

Partly agree. Provided the appropriate safeguards in national policy apply, this language signals a sensible approach. Having language in national policy that encourages decision-makers to be facilitators of development rather than simply gatekeepers is helpful considering the national housing crisis and the government’s overarching ambition to boost housing delivery. 

In particular, we welcome paragraph (d) of DM3, and the guidance that decisions should be not delayed where statutory consultees are failing to promptly respond (unless there is insufficient information or further advice would facility an approval). We would also welcome further clarification on what would constitute such ‘further advice’, so that it can allow for independent expert third party advice on a particular issue where statutory consultees are failing to engage in a prompt and constructive manner. 

In relation to DM3 (e) and (f), further clarity is required on what is expected of a local authority. It is well established that local authorities determine the application before them, and use planning conditions and obligations to ensure these proposals are acceptable in planning terms. However, the local authority would not typically go so far as to suggest amendments to a proposal if that’s not what is being proposed by the developer. 

We consider there needs to be a clear distinction between the varying levels of quality in a planning application that the council will be expected to proactively support. Many councils already provide a paid-for pre-application service to work with applicants to facilitate the creation of high-quality applications.  

While we agree there are still times in which councils should proactively work in close collaboration with developers to ensure proposals are acceptable in planning terms, it wouldn’t be wise to expect them to spend considerable time and resources in suggesting improvements to otherwise poor-quality schemes.

The rationale behind this is that planning officer time is best spent helping those well-designed schemes receive approval rather than spending a disproportionate amount of time assisting those who haven’t created a high-quality proposal. 

Development viability 

Policy DM5 limits unnecessary viability assessments at the decision-making stage, requires transparency where they are submitted, and prevents overpaying for land from justifying failure to meet plan policy. 

The government is also tightening expectations around Section 73 applications and intends to review the wider statutory framework for modifying planning obligations.

Question 25: Do you agree that policy DM5 would prevent unnecessary negotiation of developer contributions, whilst also providing sufficient flexibility for development to proceed?

In principle, this is a good idea, but the challenge is ensuring that the local plan sets relevant policies at a level which genuinely does not undermine site viability. Policies must carefully assess include how much contributions are required, how much a development will cost to build, how much they will sell a development for and how much the land will cost in the first place; all matters that are subject to periodic fluctuation due to changes in the market and cost inflation (for example). 

This puts extra pressure on local authorities to get it right at the local plan-making stage where they have a significantly reduced timeframe to make local plans and they must account for local land markets that can be very changeable, especially with smaller sites. 

Therefore, we support the inclusion of para (2) of DM5 that still supports a site-specific viability assessment at the application stage if circumstances have materially changed since the preparation of the local plan.

Question 26: Do you have any further comments on the likely impact of policy DM5, including development viability? 

We support the principle of utilising standardised inputs for viability assessments, which we note may be added subject to the outcome of this consultation. This will provide clarity to developers and landowners as to the methodology that will generally be applied when assessing viability at plan-making and decision-making stages.

However, we would urge the government to consult on any standardised inputs that will be annexed to NPPF so that the views of the public and development industry are given, so that any standardised inputs are clear, proportionate and fair.

Question 27: Do you have any views on how the process of modifying planning obligations under S106A, where needed once a section 106 agreement has been entered into, could be improved?

Shortening time limits whereby there is an application to modify planning obligations that no longer serve a proper purpose will give developers more flexibility to argue for modifications where, notwithstanding the changes proposed under DM5, market factors mean that viability constraints still arise within a relatively short time of a granted planning consent. However, some safeguards are required to prevent immediately reopening arguments on viability – for example, retaining a time limit but shortened to a more reasonable period such as two years. 

The typical implementation period is currently three years, so a shorter time period under S106A would allow the formal planning obligation modification process to be undertaken before an applicant is required to formally implement a scheme that is potentially unviable. 

The reason for our suggested change in the time period is to ensure sites don’t stall because they are subject to obligations that no longer serve a proper purpose, but where the developer has no formal application process and appeal process by which it can challenge these obligations. 

Clearly, it isn’t in line with the government’s objectives to wait until the expiry of five years before a resolution can be achieved. However, a shorter period such as two years still means developers must work with councils and should ensure they only sign agreements they tend to implement. 

Question 28: Do you have any views on how the process of modifying planning obligations could be improved in advance of any legislative change?

It is agreed that obligations in relation to affordable housing can require amending due to funding requirements of registered providers, as well as the ability of developers to dispose of on-site affordable housing to registered providers. 

Councils have policies on the type and tenure of affordable housing in order to ensure the affordable housing provided meets the housing needs in their areas. It’s also true that housing need can vary, especially on larger schemes during the period between the granting of planning consent and the disposal of affordable housing. 

Accordingly, it is accepted by all parties that planning obligations and conditions in relation to affordable housing may need to be modified. 

For those developing housing, there’s a benefit in having a clear structure within the S106 agreement or condition that allows for variation in the type and tenure of affordable housing to be provided. In our opinion, it’s usually most appropriate for that flexibility to still be subject to local authority approval, but worded in such a way to avoid Section 73/Deeds of Variation. 

In terms of our registered provider clients, the most attractive option is most likely the ability to agree an affordable housing scheme with the local authority, and for this scheme to be renegotiated if required. Such a scheme should be a reflection of the need for affordable housing within the council’s area at the time of negotiation. 

In addition, consideration should be given to guidance on terms that shouldn’t be included within conditions or S106 agreements. Examples of terms may be provisions requiring the recycling of funds from the sale of affordable housing and nomination rights into shared ownership dwellings, which can negatively impact the ability to receive Homes England funding. This would reduce the need for S73/Deeds of Variation at a later date. 

Clearer guidance would also be welcomed on how affordable housing is valued by developers when disposing these properties.