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planning law news – February 2012

In this issue, Blake Lapthorn's Planning team looks at:

National Planning Policy Framework (NPPF) update

Following Government consultation on the draft NPPF last year a House of Commons Communities and Local Government Committee considered the proposals and responses and made a number of key recommendations in a report urging ministers to rewrite the new NPPF.

As a general comment on the NPPF, the brevity of the document did not achieve clarity. Critical wording had been lost and what remained was "unhelpfully vague". The Committee recommended tighter definitions for a number of phrases, such as 'significant weight', 'significant flexibility' and 'a high degree of certainty'.

Until new guidance is produced the relevance and weight of current planning guidance needed to be secured. It was recommended that all guidance, once the NPPF is published, be reviewed in consultation with local authorities.

A number of topics were omitted by the NPPF and in particular it was recommended that the requirement for equivalent or improved replacement sports facilities be reinstated. Similarly the Committee recommended reinstating the current definition of affordable housing contained in Planning Policy Statement 3.

The definition of sustainable development was also thought inadequate and any redrafting should include wording used in the Brundtland Report and restate the five principles from the 2005 Sustainable Development Strategy, including living within environmental limits and achieving a sustainable economy.

The Committee also agreed that the drafting was weighted towards the economic growth objective in prevalence to environmental and social aims. This was the cumulative effect of the drafting and in particular:

  • the idea of the default answer to development being "yes"
  • the way the concept of viability was framed
  • the 'significantly and demonstrably' test for evidence against development, and
  • policy changes relating to transport, brown field development and land supply identification.

The cumulative effect was the possibility of unsustainable development. Indeed the sentence containing the default answer to development being "yes" was recommended to be omitted.

Local authorities should be given adequate, but time limited, opportunity to adopt up to date plans. The lack of such plans over much of England eight years after changes brought in by the Planning and Compulsory Purchase Act 2004 was considered unacceptable, but the NPPF failed to provide a basis for decision making in the absence of Local Plans.

It was concluded that the presumption in favour of sustainable development should be regarded as a high level principle and not a "challenge to the predominance of local decision making". Therefore the presumption should be expressed as a "presumption in favour of sustainable development consistent with the Local Plan".

As a result of any changes there was also a need to establish a transition timetable to ensure uncertainties for developers are avoided and to allow local authorities to adopt plans.

The Committee concluded there was a strong case for a second short technical consultation and if substantial changes were made to any of the key principles then a short wider consultation. The recommendations are extensive and it is likely the Government will amend the NPPF to an extent that will require further consultation of some sort.

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wind farm noise case thwarted

A potential landmark case for noise nuisance generated by onshore wind farm development has been avoided by an out of court settlement.

Neighbouring landowners to a wind farm built in 2007 at Deeping St Nicholas, Lincolnshire, contended that they were forced to move out of their house due to the noise generated by the turbines. They sought £2.5 million in damages and a permanent injunction to prevent the turbines from operating.

Noise generated by turbines is often cited as a key objection to wind farm planning applications, but the wind farm operator's defence suggested the claimants were overly sensitive.

The settlement prevented any judgment being reached on the issue, but campaigners are likely to use the settlement as evidence of the industry's acceptance that noise impacts are understated and much greater weight should be given to noise considerations in determining planning applications.

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Natural England's new enforcement sanctions

From 3 January 2012 Natural England has been able to use civil enforcement sanctions. There is also updated enforcement guidance available through Natural England's website.

Use of the sanctions is limited to enforcement of legislation specified in the consultation that we reported on in our September 2011 bulletin and which summarised the new sanctions. The offences and sanctions have been included in a summary chart at Annex 5. Annex 2 to 4 of the guidance explains how civil sanctions will be used. The sanctions are aimed at offering more a proportionate enforcement response to secure environmental protection.

View the new guidance on the Natural England website.

Interestingly the wider use of civil sanctions by other regulators remains on hold whilst a cross-government review of regulators' civil sanctioning powers is finalised.

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Campaign for the Protection of Rural England (CPRE) NPPF Report

In a further development the CPRE published a report highlighting another omission from the NPPF; the failure to recognise the intrinsic value of the countryside outside of National Parks, Areas of Outstanding Natural Beauty and Green Belts.

The report highlights the risk of inappropriate development to vast areas of unprotected countryside with the inclusion of maps to highlight the threat on national, regional and county scales.

Download the report here.

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For further information on any of the issues raised above, please contact Keith Lancaster in our Planning law team in Oxford on 01865 253 295 or email