In contrast to the fanfare which greeted the original National Planning Policy Framework (NPPF) when it was published in 2012, the updated document was released without much flourish at the end of July.
Although it now looks markedly different compared to its 2012 predecessor, the final copy has remained largely unchanged from the consultation draft which was released in March.
However, an addition has been made to paragraph 130 of the NPPF, pertaining to design and specification changes which happen after a scheme has been approved:
“Local planning authorities should also seek to ensure that the quality of approved development is not materially diminished between permission and completion, as a result of changes being made to the permitted scheme (for example through changes to approved details such as the materials used).”
This has been added to the finalised NPPF since the draft was issued, and as such has not faced any consultation, despite the fact that it could have significant implications for development. As a result, its authors may well find it is widely scrutinised in appeals – not to mention litigation – for years to come.
An emphasis on design
When the consultation draft of the revised framework was published, it was notable how much emphasis the government had put on quality design in the planning process. The amendment in question falls within chapter 12 of the 2018 version, which was heavily altered from the 2012 original. Chapter 12 sets out that developments must be “visually attractive as a result of good architecture” and “establish a strong sense of place”; nothing is more subjective than the question of what amounts to “visually attractive” design (after all, beauty is in the eye of the beholder), and therefore it is interesting to note that the government has leant weight to such judgments within the revised NPPF.
The addition to paragraph 130 gives local planning authorities a basis for refusing to approve amendments to design (seemingly through either section 96A and section 73 of the Town and Country Planning Act, or conditions discharge applications), where they consider it results in a material diminution in quality. The way in which this amendment is interpreted by local authorities, and how they judge the meaning of the words “materially diminished”, could have a significant impact on delivery.
The proof will be in the interpretation
Unfortunately, there is no written ministerial statement or explanatory note to shed further light on the amendment, and so exactly how it will be construed in practice is not yet clear. In the absence of any guidance, the best we can do is to drill down into the words themselves to establish their meaning.
Based on the provision above, for a design to fall foul of new paragraph 130, it must be both:
a) of lesser quality than the original design (as opposed to just being different); and
b) materially so.
Given the lack of specific guidance, it pays to consider analogous points. In particular, the law and guidance surrounding the materiality of proposed amendments under section 73 and section 96A. It is well established that in those instances, regard should be had to the scheme as a whole. In Burroughs Day v Bristol City Council [1996] 1 EGLR 167 the court confirmed that thought must be given to: the nature of the changes themselves, the buildings to which they apply (and their use and form), and how perceivable the changes are from a variety of viewpoints, in order to determine the materiality of an amendment.
Local planning authorities (LPAs) should for this reason be wary of rejecting a scheme on the basis of the revised paragraph 130 solely on a subjective difference of opinion. The paragraph does not give carte blanche to reject amendments simply because they are not the authority’s particular preference.
Accordingly, a proposal which is different, but remains of high quality and in accordance with policy requirements, would not fall foul of this paragraph. Chapter 12 also invites LPAs to publish their own style guides and local plans. Councils would be wise to do this, as design guides could provide an objective basis to use when deciding whether a change is material.
Next steps
Amendments to planning details are part and parcel of bringing forward developments of any scale. There has to be room for pragmatism in the face of changing conditions and innovations in construction methodology and materials.
Paragraph 130 simply cannot be intended to rail against this. When it comes to interpretation, it must be seen as a safeguard against promising the moon in order to bank a consent, in the full knowledge that what has been proposed will never be delivered. The new design policies laid out in the NPPF must be used as the carrot – encouraging good, attractive design – and not the stick, simply used to dismiss anything that does not fit the subjective taste of officers and councillors. This is sure to be the cause of some controversy and debate in the coming months and years, and it is unlikely that judges will want to pass down rulings on what does and does not constitute “attractive” design.
Paragraph 130 does, however, serve as a reminder that it rarely pays to obtain a consent that is premised on later variation to be deliverable. Where change is necessary, however, developers should be prepared to demonstrate clearly how the amendments benefit the scheme, and how they measure up against the yardstick of material diminution.
Alex Woolcott is a solicitor in the planning team at Winckworth Sherwood
