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
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
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
- 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
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
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
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.
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
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
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.
Campaign for the Protection of Rural England (CPRE) NPPF
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
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.