Part d) of paragraph 11, relating to what the ‘presumption’ means for making decisions on planning applications addresses what to do when policies are considered out-of-date. Application of paragraph 11d), as an extension to the overall planning balance when making decisions on applications, is what has become known as ‘the tilted balance’.
It should be noted that this does not apply exclusively to residential development proposals, but this is where it has been most commonly beneficially applied.
Currently, this paragraph applies either when there are no relevant development plan policies, or when the ‘most important’ policies for determining the application are out-of-date.
In the proposed amendments, the first part would remain unchanged; if there are no relevant development plan policies, the ‘presumption’ still applies.
However, the reference to ‘most important’ policies would be replaced. Instead , paragraph 11d) would focus specifically on the policies ‘for the supply of land’. This is accompanied by a new footnote (Footnote 8), which clarifies that policies for the land supply include those setting overall requirements, making allocations, and allowances for windfall sites. This proposed change aims to reduce the extensive appeals and court challenges previously seen over the interpretation of ’most important’ policies, which remains unclear and inconsistently applied to this day.
Additionally, the draft NPPF proposes reversing the previous Government’s December 2023 amendments to Footnote 9, which defines what ‘out-of-date’ means. The removal of a grace period for LPAs with emerging local plans at a late stage, which allows them to demonstrate only a four-year housing land supply instead of five, would be a key change. The implications of this amendment are covered in our earlier article on housing delivery. (Part 1)
The ‘tilted balance’ then requires planning permission to be granted unless one of two exceptions applies. The first exception remains unchanged, which is if NPPF policies that ‘protect areas or assets of particular importance’ provide a clear reason for refusing the proposed development.
The second exception, which is where ‘any adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits’ taking into consideration the NPPF policies, as a whole, has a proposed addition. This focuses attention on the parts of the NPPF that relate to the location and design of development and securing affordable homes.
The Effect of These Changes
The proposed change to identification of the relevant policies from ‘most important’ policies to policies ‘for the supply of land’ should provide much needed clarity. It would confirm that the tilted balance can be engaged either by there being no relevant Development Plan policies, or by policies ‘for the supply of land’, as identified in Footnote 8, being out-of-date according to the definition in Footnote 9. This in itself would not increase the delivery of development. However, it should give applicants greater certainty on the acceptability of speculative proposals and spur LPAs on to bring their plans up to date.
The reintroduction of the minimum 5 year land supply requirement will bring a number of LPAs back into the position of falling short on their supply. Again, this opens up the potential for speculative planning application to succeed and should focus LPA efforts on identifying additional land for housing through their Local Plans.
The addition of reference to particular attention being paid to policies on location, design and affordable housing when assessing whether the harm of a proposal would outweigh the benefits seem to be an afterthought without a clear logic. We expect to see this wording removed or refined in due course.
The main positive shift to focus on is the push for LPAs to sort out their housing land supply positions and start enabling the delivery of more housing.
