What's wrong with Labour's planning rewrite?

Three problems with the draft NPPF and how to fix them

Labour’s draft National Planning Policy Framework (NPPF) is a radically pro-development document, at least in theory.

But in the planning system, small changes in wording can have large real-world consequences. Some of the brightest minds in the country are paid huge sums to spend months arguing over the definition of words in the NPPF. The precise phrasing of national policy often determines whether homes are built or blocked. And even when the courts rule in favour of development, legal uncertainty can delay the impact of pro-building reforms for years.

There is a real risk that the pro-development intentions of the NPPF are thwarted by unclear drafting. Several aspects of the draft risk undermining the reforms’ positive direction. Three problems stand out: a structural “get out clause” in the presumption in favour of sustainable development, a new national restriction on development outside settlements, and the rewriting of established policy in ways that could create legal uncertainty.

Problem 1: the S4(2)(c) get out clauses

Policy S4 establishes a presumption that development within settlements “should be approved unless the benefits of doing so would be substantially outweighed by any adverse effects,” but a few lines later policy S4(2)(c) states that development should not be approved where it:

“Fail[s] to comply with one of the national decision-making policies which state that development proposals should be refused in specific circumstances.”

This creates a structural flaw.

Across the framework there are numerous national decision-making policies on things like design and flooding that contain “should be refused” language. Because S4(2)(c) treats those policies as overriding the presumption, they effectively operate as automatic vetoes.

The result is creating a list of get out clauses for councils that don’t want to build and other NIMBYs to exploit that do not exist under the old version of the rules.

In practice, many planning appeals turn on exactly this kind of interaction between broad presumptions and detailed refusal policies. The way the draft is currently written risks giving objectors and resistant councils a ready-made list of routes for arguing that the presumption does not apply.

Even if the policies on flooding and design are, in practice, not that restrictive, it is likely that councils (or residents) who oppose development are likely to lean heavily on them. The planning inspectorate may eventually rule in favour of the development, but it could take years before it meaningfully changes council behaviour. At which point, another Housing Secretary will probably redraft the national decision-making policies again recreating the problem.

This Government cannot afford a few years of delay. Looking at housing starts, competitions, and the planning pipeline suggest that without a very large increase in planning approvals, they will not only miss their 1.5 million home target, but even fail to outbuild the Covid-hit last Government.

So, a better approach would be for those policies to weigh strongly against development without automatically flipping the presumption. Planning committees would then have to consider both the harm arising from conflict with national policy and the framework’s clear intention to encourage development within settlements.

Problem 2: a new national restriction on development outside settlements

A more worrying development is policy S5, which forms the counterpart to S4’s pro-development approach within settlements.

Policy S5 states:

“Only certain forms of development should be approved outside settlements.”

Development outside settlements is therefore supported only where it falls within a specified list of categories. Proposals outside those categories may only be approved in exceptional circumstances.

This represents a clear shift from the current framework. The existing NPPF does not impose a national restriction on development outside settlements. Instead decisions are largely shaped by local plans and, where housing targets are not being met, by the presumption in favour of sustainable development.

The intention is presumably to shift development away from car-dependent greenfield to land near train stations or within towns and cities. The risk is it stops the former, without boosting the latter.

For example, the rule may stop rural councils that actively want to build to keep villages affordable and vibrant places for people of all ages from building what they need.

Under the current system councils that don’t want to build in rural areas can find lots of excuses not to. However Policy S5 means that even those that want to build will find it difficult to do so and that the scales will be tilted against rural development.

It is understandable that ministers want to prioritise development in settlements. But introducing a national restriction on development outside them, before we have seen the impact of the Government’s pro-building policies inside settlements, risks unnecessarily constraining housing supply.

If building within settlements does not increase as much as expected, this change could end up actually reducing the overall number of homes delivered. The pro development approach in settlements is welcome, but this does not mean we need to have an anti-development approach outside of them.

Problem 3: rewriting flood policy creates avoidable uncertainty

Rewriting the whole NPPF allowed ministers to introduce major reforms. But it has also created avoidable uncertainty.

For example, the language on flooding has been completely rewritten. The apparent aim is to consolidate policy and clarify how the system should operate without making major changes.

However even small changes to long-standing policy wording can have significant consequences in the planning system.

Where ministers intend to change policy, that should be explicit. Where they do not, it is usually safer to retain established wording. Otherwise there is a risk that policy is unintentionally altered. The old wording has been interpreted through many appeal decisions and has therefore developed a substantial body of precedent. Planners, developers and local authorities broadly understand how it operates in practice.

One example is language about what alternative sites developers have to consider when building in areas with a low level of flood risk. The current language refers to “reasonably available sites”. The new draft suggests instead “catchment of the development in terms of its likely occupiers or users.”

It is not clear whether the new language is more permissive of development, less permissive or exactly the same. But we can be sure that planners, developers, councils, the planning inspectorate and ultimately the courts will have years of fun finding out. NIMBY councils will see this as a way to delay development. If the Minister’s intention is for the rules to remain the same in this area, they should keep the language the same.

These problems are fixable

None of these issues should be allowed to undermine the overall direction of the reforms. The draft NPPF still contains some of the most pro-development national planning policy England has seen for decades. But small drafting choices can have large consequences in the planning system. The government should respond to the consultation by fixing the S4(2)(c) get out clauses, softening the hard new national restriction on development outside settlements and removing unnecessary changes to language that can create delay. Then the new framework would be far more likely to achieve the Government’s stated goal: building more homes.