The Christmas 2023 NPPF: a survey (Tidings of comfort and joy, or a bleak midwinter?)

Introduction

1. The week-before-Christmas timing of the new NPPF lends itself to any amount of yuletide wit. But given the internal strife within the ruling party that produced this new document, reflected in textual changes that at times pull in different directions, in this article I set out to identify: 
   
   (1)    the major changes, and any others of substance;  and
   (2)    who (or what) might be filled with seasonal cheer as a result (and who left drowning their sorrows)?
    
2. At the same time as it published this new NPPF, the government provided an update to its response to the long-running NPPF consultation (“Consult.” and “Gov.Resp.”). This emphasises the complementary nature of the changes, alongside the implementation of the Levelling Up and Regeneration Act 2023, and that additional policy changes are envisaged (Gov.Resp.para.2 ‘it is essential that the reforms in the Act are accompanied by an initial set of changes to national policy, through an update to the (NPPF)…’). 
3. The thoughts I present here are entirely my own (and I have decided to studiously avoid any other commentary that might be available, save Gov. Resp. itself, to ensure I come at this with an open mind).
4. Matters are not assisted by the fact that, at time of writing (26 December 2023) the NPPG has yet to be updated (and the NPPG’s cross-references to the NPPF are still to the September 2023 version).
5. The major changes boil down to two principal areas: 
   
   (a) changes concerning housing need and land supply, notably proof of land supply (para.76), with related changes to para.11(d)’s footnote 8, plus removal of the 5% and 10% buffers, that mark a shift in favour of a plan-led system, and changes generally across Chapter 5 (delivering a sufficient supply of homes), including regarding community-led development, along with changes to other chapters likely to affect housing need/land supply requirements (including an important clarification regarding plan-making and Green Belt review) 
   
   (b) changes to the timespan over which neighbourhood plans hold sway (most likely to, also, impact housing, and another shift in favour of a plan-led system).
    
6. Changes of substance outside those areas include mansard roofs (and of the “campaign” responses to the NPPF consultation, the “Mansard Roof Campaign” was placed fourth by number of responses, with 226). 
7. As to who might be cheered, certainly LPAs on top of their local plan-making, anyone keen to see the circumstances in which the tilted balance applies cut down, all champions of unaltered Green Belt and of neighbourhood planning, and undoubtedly anyone keen on adding a mansard roof. But on balance surely not a gift the housebuilding industry was hoping to unwrap (albeit applications already made prior to publication of this NPPF will not be affected by the para.76/footnote 8 changes).
8. By no means all of the significant changes proposed have been carried forward, e.g. the proposal to alter the test for “soundness” by removing the “justified” requirement (see Gov. Resp. re. Question 11).
9. In terms of textual changes across the document as a whole, a large number of paragraphs, plus footnotes, have been altered, and new paragraphs added, by comparison with the September 2023 NPPF. Not counting updating internal referencing (e.g. footnote 7) or shifts to paragraph length through inexplicable formatting (e.g. para.15, para.25, para.53(a)), or changes to headings (Chapter 12) or the addition of sub-headings (Annex 1) I count well over 30 either new or altered paragraphs and footnotes.  
10. Many of these changes are fine words, but query whether they have substantive bite. Even these, though, tell us something about the balancing act between competing causes going on behind the scenes. Paragraph 1 itself is the first example, along with para.7 (see Gov. Resp. re. Question 6). Para. 1’s new wording, identifying the preparation and maintenance of up-to-date plans as a priority in meeting the objective of providing sufficient housing and other development in a sustainable manner, plus para.7’s new wording ‘including the provision of homes, commercial development, and supporting infrastructure in a sustainable manner’ are undoubtedly positive words, regarding both plan-making and supporting infrastructure, but without tangible bite in-and-of themselves, requiring plan-makers and decision-takers to pick up the ball and run with it.
11. See also e.g. para.88(a), 96 (stem), or para.128(e), to which “beautiful” formulations have been added, and even the addition of ‘and beautiful’ to the heading to Chapter 12 ‘Achieving well designed and beautiful places’ (see Gov. Resp. re. Questions 33 & 34) (though in fairness para.138 does contain new text that the primary means of assessing and improving the design of development should be through the preparation and use of local design codes, a substantive shift).
12. Another early textual change that should make no practical difference, but probably will due to varying levels of familiarity with existing government policy, and which is no doubt linked to the clarification provided at footnote 36 discussed below, concerns First Homes. The WMS on Affordable Homes Update (24 May 2021), concerning First Homes policy, is added at para.6 as the only specific example of a statement of government policy that may be material when preparing plans or deciding applications. The WMS was (is) lengthy, sufficient to increase the NPPF page count by some 10% if included as text. Another example of the inevitable accretion of policy/guidance. How long before someone suggests different numbered policy statements, or guidance documents, for different areas of planning policy. We could call them PPSs, or PPGs…
13. But we are into the substantive changes soon enough, starting with footnote 8, with gives the reader an early indication of what is coming in Chapter 5. 
14. I now take items thematically.
    
    Housing  (housing requirement, housing land supply and related tilted balance and other changes, plus community led development and miscellaneous)
     
15. By way of warm up to the main substantive housing points:
    
    (1)    The standard method is now explicitly described as an ‘advisory starting point’ for establishing a housing requirement for the area (para.61). Potentially important words, albeit not a substantive change (this has been policy for some years).
    (2)    It is later explained that a strategic policy-making authority’s housing requirement may be higher than the identified housing need ‘if, for example, it includes provision for neighbouring areas, or reflects growth ambitions linked to economic development or infrastructure investment’ (para.67);
    (3)    The “exceptional circumstances” that might justify an alternative approach are also now elaborated somewhat (again at para.61) (and see Gov.Resp. re. Question 8); 
    (4)    It is made clear by para.62 that the standard method incorporates an uplift which applies to certain cities and urban centres (as already set out in NPPG) and, importantly, that this ‘should be accommodated within those cities and urban centres themselves except where there are voluntary cross-boundary redistribution agreements in place, or where it would conflict with policies in (the NPPF)’ (my emphasis) (and see Gov. Resp. re. Questions 13-15);
    (5)    There is some elaboration of the “older people” group at para.63 (old para.62) (and see Gov. Resp. re. Question 23); and
    (6)    A minor textual change at para.69(a), requiring that planning policies identify a supply of specific, deliverable sites for ‘five years following the intended date of adoption’ (as opposed to the previous para.68(a): ‘years one to five of the plan period’), is accompanied by footnote directing the reader to what is a substantive change to “buffer” requirements at para.77 (old para.74) (discussed below).
     
16. After those antipasti, there is then something of a primo, concerning new “community-led development”. 
17. An additional sub-para. to what is now para.70 (old para.69) sees LPA required to seek opportunities, both when plan-making and decision-taking, ‘to support small sites to come forward for community led-development for housing and self-build and custom-build housing’ (para.70(b));
18. That is bolstered by substantial changes to para.73 (old para.72), and also changes to para.82 (old para.78), supporting the development of exception sites for community-led development on sites that would not otherwise be suitable as rural exceptional sites (and which are not already allocated for housing). Note that whilst, textually, this replaces the support for ‘entry-level exception sites, suitable for first time buyers (or those looking to rent their first home)’ in old para.72, and ‘opportunities to bring forward rural exception sites that will provide affordable housing to meet identified local needs’ in old para.78, footnote 36 to para.73 makes clear that the para.73 exception site policy does not replace the First Homes exception policy set out in the Affordable Homes Update Written Ministerial Statement of 24 May 2021. 
19. By virtue of para.73(a), the community-led development must comprise one or more types of affordable housing (though a proportion of market homes may be allowed at the LPA’s discretion ‘for example’ (and note, only for example, this is not an exhaustive list) ‘where essential to enable the delivery of affordable units without grant funding’ (para.73(a)). 
20. Note also that the Annex 2 definition of “community-led development” (see p.69, top) is not merely a rebadging of ‘entry-level exception sites, suitable for first time buyers (or those looking to rent their first home’ (and see further Gov. Resp. re. Questions 27 & 28).
21. Then we reach the main event, the “Maintaining supply and delivery” subsection (what are now paras.75-80 (previously para.74-77)) , which sees major changes (reflected in changes affecting the para.11(d) tilted balance).
22. First, by para.76, LPAs whose adopted plan is less than five years old and which, at the time that its examination concluded, identified at least a five year supply for specific, deliverable sites, are no longer required to identify and update annually a five-year housing land supply. Compare that to old para.75, which provided such leeway only for a “recently adopted plan”, where “recently adopted” meant c.1 year, or a subsequent annual position statement meeting the requirements of para.75(a) and (b). That latter means of proof also remains available, now at para.78.
23. So, a tangible easing of the development pressure on LPAs with the right adopted plan in place, and a clear move in favour of a plan-led system.
24. However, by footnote 79 (to para.224 in Annex 1), the para.76 policy and related changes to footnote 8 (see below) should only be taken into account as a material consideration when dealing with applications made on or after the date of this NPPF.
25. Second, by para.77 and para.226, there is also an offering over the next two years (only) for LPAs with an emerging local plan (that has been either submitted for examination, or has reached Reg.18 or Reg.19 stage, so long as it includes both a policies map and proposed allocations towards meeting housing need). Such LPAs need show only a four years’ housing land supply (with a buffer, if applicable) (see Gov. Resp. re. Question 16). 
26. Third, the buffers themselves are significantly altered, so that the 5% and 10% buffers required by old para.74(a)-(b) are removed. Only the 20% buffer in cases of significant under delivery of housing over the previous three years remains (para.77).
27. Fourth, there are consequential changes to the para.11(d) tilted balance, the ‘presumption in favour of sustainable development…as set out in footnote 8’, which footnote 8 continues to define the para.11(d) wording ‘the policies which are most important for determining the application are out-of-date’. It remains the case that delivery falling below 75% of the requirement over the previous three years triggers the presumption (and this text is now repeated at para.79(c), as well as at footnote 8). But elsewhere, footnote 8 reflects the changes to Chapter 5 and Annex 1 para.226. Compare the wording of the September 2023 footnote 8, with the new wording (new text in underline, deletions struck through:
    
    September 2023:
    
    This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 74); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.
    
    New wording:
    
    This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply (or a four year supply, if applicable, as set out in paragraph 226) of deliverable housing sites (with the appropriate a buffer, if applicable, as set out in paragraph 74 76) and does not benefit from the provisions of paragraph 76; or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.
     
28. The changes to footnote 8 neatly signal that what has occurred is a material, and multi-faceted, paring back of the circumstances in which the tilted balance will apply due to lack of housing land supply.
29. Linked changes outside Chapter 5 concern urban density and Green Belt.
30. As to the former, there is a rowing back on the push for increased housing densities in urban areas: new para.130 now provides a caveat to the policy push for ‘significant uplifts in the average density of residential development’ in urban areas, recognising that this ‘may be inappropriate if the resulting built form would be wholly out of character with the existing area’.
31. As to Green Belt, para.145 now makes clear that there is no requirement for Green Belt boundaries to be reviewed once plans are being prepared or updated.  Gov. Resp. explains this is to remove ambiguity. Though surely it will encourage some LPAs to preserve Green Belt at the expense of a housing requirement figure that matches their housing need.
32. In addition, para.145 is now explicit that proposals for changes to Green Belt should be made only through the plan-making process.
33. In short, it is now made decisively clear that LPAs do not need to review their Green Belts even if they cannot otherwise deliver a 5YHLS (or 4YHLS), and that any proposals for changes to Green Belt should be plan-led. If these changes have an effect, it will only be in one direction: preservation of the Green Belt status quo (likely at the expense of housing).
34. However, the changes are not one way traffic.
35. A pair of significant, related, housing requirement changes that were proposed, but have not been made (at least for now), are: (a) the suggestion that past over-supply might be relied upon to reduce a present housing requirement (see Gov. Resp. re. Question 9); and (b) the suggestion, which Gov.Resp. re. Question 3 states will be done, but not yet, that the NPPF, and NPPG, be altered to ‘make clear…that past over-supply can be taken into account when calculating a 5-year housing land supply’.
36. In addition, the proposed introduction of a permissions-based test for the Housing Delivery Test has been placed in the too-difficult pile, requiring further consideration (Gov. Resp. re. Questions 18-20).
    
    Neighbourhood plans
     
37. Though very much more limited in terms of textual alterations, the elongation of the protected life of neighbourhood plans, by the changes to para.14, is another major change (Consult. Question 5).
38. Contrary to the previous two-year grace period for a neighbourhood plan, now conflict with a neighbourhood plan is likely to ‘significantly and demonstrably outweigh the benefits’ for the purposes of para.11(d) if it became part of the development plan five years or less before the date on which the decision is made, provided the neighbourhood plan contains policies and allocations to meet its identified housing requirement, where that requirement has been identified within that same period of five years or less. Gone is the requirement for the local planning authority to have at least a three year supply of deliverable housing sites, and that the local planning authority’s housing delivery was at least 45% of that required over the previous three years.
39. In practice, this change, too, is likely to most affect housing.
    
    I see a mansard roof through the trees…
     
40. Somewhat lower down the Richter scale, though still substantive, para.124(e) contains new text providing support, albeit qualified, for the addition of mansard roofs on “suitable properties” (and see Gov. Resp. re. Question 36). The term “mansard roof” is now defined in Annex 2 (Glossary) (“suitable property” is not defined).
    
    Other changes
     
41. The promotion of the role of local design guides in shaping development (para.138) and the (para.140) use of conditions to ensure ‘visual clarity about the design of the development’ and ‘the approved use of materials where appropriate’ to provide greater certainty for those implementing the permission and a clearer basis for LPAs to identify breaches of planning control may have day-to-day consequences (though, note, there is nothing here that reflects the practice of many Inspectors faced with an architectural interesting but challenging building: steering the applicant towards ensuring the scheme architect retains oversight through a s.106) (see also Gov. Resp. re. Questions 33&34 and Gov. Resp. re. Question 35).
     
42. There is also a new para. in Chapter 14, para.164, requiring LPAs to give significant weight to the need to support energy efficiency and low carbon heating improvements to existing buildings (see Gov. Resp. re. Question 44).
43. There is an addition to what was footnote 58, now footnote 62, in Chapter 15 (conserving and enhancing the natural environment) to place some emphasis on the need to consider the ‘availability of agricultural land used for food production’, along with the other NPPF policies, when ‘deciding what sites are most appropriate for development’ (and see Gov. Resp. re. Question 38).
44. Annex 1 (Implementation) has been reworked, not only with the addition of sub-headings (“For the purposes of decision-making” and “For the purposes of plan-making”). Changes to the text reflect the changes to housing land supply requirements (para.226) (see above), and also:  changes have been made to what was para.222 (now para.229) regarding policy on renewable and low carbon energy and heat; a new para.230 provides for transitional provisions for plan examinations; and old para.223 (concerning the Housing Delivery Test) is deleted (though the Housing Delivery Test definition remains in Annex 2 (Glossary), save that it now states results will be published annually, rather than every November).
45. Annex 2 (Glossary) contains the following new definitions (in underline), and the following deletions (struck through):
    
    Community-led developments (definition at p.69, top);
    
    Entry-level exception site;
    
    Mansard roof (p.72, middle)
     
46. As noted, there changes that might have been made, but have not. A number of those that were proposed but have not been taken forward have identified above. To them we can add the proposals that an applicant’s past-performance in relation to build-out be publicised, that developers explain how they propose to increase diversity of housing tenures to maximise a scheme’s absorption rate, and that delivery rate be weighed as a material consideration in decision-making. Further consultation is promised (see Gov. Resp. re. Question 32). 
47. There are others that might be thought due. One of particular interest to this author is the list of example “irreplaceable habitats” (para.186(c)) at Annex (Glossary). The (non-exhaustive) examples remain ‘ancient woodland, ancient and veteran trees, blanket bog, limestone pavement, sand dunes, salt marsh and lowland fen’, which looks out of date given the decision of the three Inspectors examining the Manchester Places for Everyone Local Plan that significant, but heavily degraded, areas of deep peat were irreplaceable habitat.
    
    Conclusions
     
48. Taking as many steps back as necessary to gain an appropriate sense of perspective, the changes to the NPPF will surely be welcomed by LPAs struggling with housing land supply and the tilted balance, particularly those armed with a suitably up-to-date local plan, but will likely come as a disappointment to the housebuilding industry. Overall they will tend to suppress housing delivery. This is true not only of the changes to the housing chapter, but of changes elsewhere, given the steer away from Green Belt revision to meet housing need, and that neighbourhood plans will hold sway for rather longer. 
49. That said, the housebuilding industry might reflect that matters could have been worse (not all proposals have been taken forward).
50. Equally, the increased emphasis on design codes and beauty may improve what is permitted and constructed, whilst for fans of the mansard roof it seems many Christmases have come at once.