May Government is knocking heads: Viability and the NPPF 2018

20 Feb 19 | David van der Lande

Since July 2018, if LPAs have an up-to-date Local Plan which has been drawn up with an accepted approach, then it is assumed all development is viable and developers must ensure they bid on land to accept the policy position.

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The Government has sought to speed up the delivery of new homes by creating a new degree of certainty in the planning process. For too long, Local Planning Authorities (LPAs) and developers have been in disagreement, the process mired in dispute and slowing down development; and Government has acted decisively.

The previous paragraph 173 of the NPPF 2012, allowing reasoned discussion is no more. Where flexibility was previously encouraged, the choices are now starker for developers and LPAs.

Since July 2018, if LPAs have an up-to-date Local Plan which has been drawn up with an accepted approach, then it is assumed all development is viable and developers must ensure they bid on land to accept the policy position. The NPPF is clear: leadership in Local Plan making is in the hands of the LPAs. However, there is a warning to use this power sensibly, because the test is a practical one: if the Local Plan fails to deliver its objectives then the NPPF gives power to developers.

With up-to-date policies, that have assumed viable development, it will be up to the applicant to demonstrate whether circumstances now justify the need for a viability assessment at the application stage. Macroeconomics, Brexit, and shifting markets become factors in demonstrating the changes to justify the use of viability at decision taking. Carried out effectively, early assessments will save time and money for developers. Where an up-to-date policy is sensibly drawn up, it will assist Councils in meeting housing targets. For areas with ineffective or outdated local policy, the developers have an opportunity to secure consents before new policy emerges.

Understanding the Local Plan process is going to be critical for developers bidding for sites; the risk weighting given to existing policy will need to be given greater consideration in determining if development is going to be viable and the time required to secure planning.

For strategic sites, being involved in the plan making process is going to be important in securing a viable development site. Iceni’s expertise in engaging more fully in the plan making process, testing the underlying assumptions to viability and demonstrating the weakness or strengths in policy formation, can help generate the sufficient headroom to allow robustly viable development on a site and enable it to be brought forward faster.

The new NPPF encourages the use of transparent standardised inputs in plan making and decision taking to hasten the process but where those inputs and policies are unrealistic or result in preventing development, they will open the flood gates. No doubt, where LPAs use unrealistic assumptions and inputs they will be the subject of appeals but it is likely to be the identification of opportunities to use the new NPPF regime that will turn the policy into a mutually beneficial process for LPAs and developers seeking to deliver profitable new development quickly. For those that are not, the lines in the sand have never been more clearly drawn and the process is going to be less forgiving.

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