On NDMPs

To be statutory or to be non-statutory? That, in relation to National Development Management Policies (NDMPs), is the existential Shakespearean conundrum that the custodians of the planning system appear to have been grappling with of late.

Section 93 of The Levelling Up and Regeneration Act (LURA) made provisions, you will recall Dear Reader, to replace s.38(6) of the Planning and Compulsory Purchase Act 2004 as it applies in England such that determination of planning applications should be made in accordance with the development plan and any NDMPs unless material considerations strongly indicate otherwise (thereby strengthening the presumption from its current legal formulation). Further, if there is any conflict between the development plan and a NDMP, the conflict must be resolved in favour of the latter.

Matthew Pennycook told MPs in November that the Government planned to consult on the NDMPs “in the spring of next year”, but spring has turned to summer and in reporting the delay last month, Planning magazine made mention of “a debate within Government about whether or not to introduce NDMPs via the statutory route provided for by the LURA, or simply as a policy document like the National Planning Policy Framework (NPPF)”.

The essence is that, as of last month, the Government had still not concluded whether or not to proceed with the s.93 provisions and elevate NDMPs to a status equivalent to, or greater than, the statutory development plan, and thereby enhancing the presumption in favour of both against any other material considerations.

NDMPs, you might also recall Dear Reader, were first mooted in 2020’s somewhat now infamous Planning For The Future White Paper, and whilst some of the more, let us politely say, esoteric proposals contained within that document have fallen by the wayside, NDMPs have not, perhaps because, fundamentally, good policy is good policy and good policy endures.

The case for making NDMPs statutory can be summed up in the single word that featured on the front cover of the Labour Party’s 2024 general election manifesto: change.

According to the 2023 consultation on the implementation of plan-making reform, local plans take, on average, seven years to prepare. Stripping development management policies from them would make a meaningful difference to lowering that average.

According to recent research by Lichfields, the average time taken to determine a major outline application was two years in 2024 and 8 months in 2014. Providing a clearer and more consistent rules-based policy framework against which potential development sites can be appraised and against which subsequent planning applications can be determined would make a meaningful difference to lowering that average as well.

The case for not making NDMPs statutory seems to be both procedural and philosophical.

Procedurally, it has been suggested that a Strategic Environmental Assessment (SEA) would be required, to which the obvious counter argument would be to just undertake a SEA.

It has also been suggested that parliamentary approval would need to be sought; Were that correct (and it is not immediately clear that such an obligation exists), the obvious counter argument would be to just secure parliamentary approval.

It has been further suggested that the scale of the task counts against them. “ A lot of this stuff won't be reinventing the wheel, but there is potentially a lot of work to do”, ‘a source’ told Planning, to which the obvious counter argument would be that if civil servants are too busy to draft them then surely some consultants can be found to assist them.

A final suggestion is that the scope for legal challenge counts against statutory NDMPs, to which the obvious counter arguments would be, firstly, to make them sufficiently robust as to withstand legal challenge and, secondly, that if this argument prevails then no Government, let alone one with a working majority of over 150, should contemplate anything bold and visionary ever again.

Relatedly and moving to the philosophical argument against statutory NDMPs, what would appear to be counting against them is a concern that they would have more weight than local plan policies when the two are in conflict, a somewhat bizarre concern given that this is the whole point in trying to simplify future local plans, and when the Government has observed that plans prepared under previous national policy do not address the national imperative for economic and housing growth.

Planning magazine reported that “the Government has said it wants NDMPs to take over from local plan policies in a host of areas where councils are grappling with common issues” whilst simultaneously quoting ‘a source’ as saying that “if you just implemented the legislation, even up to date policies would be trumped. It would have major consequences for local plans.” Yes, but surely that is the point, is it not?

I do find it a little surprising that the case for statutory NDMPs has not yet been won because to my very unsophisticated mind they sit within the narrow overlap on the Venn diagram comprising the circle containing ideas liked by most planning practitioners and the circle containing ideas generated by policy wonks.

From the wonkish point of view, NDMPs very much chime with the agenda that is seeking a more codified, less discretionary planning system. They represent the clear, consistent ‘upstreaming’ of development principles.

From the practitioners’ point of view, or at least from this practitioner’s point of view, NDMPs fill a significant gap in planning’s ‘cascade of proportionality’. If, for example, you believe, as your correspondent does, that national issues should be dealt with nationally, regionally issues dealt with regionally, and local issues dealt with locally, then it should surely follow that the appointed Minister responsible for the system be afforded the ability to dictate how to address national issues by way of national planning (which I would humbly contend is an argument entirely consistent with the ‘planners at the top table’ case for statutory chief planners within LPAs).

Enacting s.93 would address the almost six decade-old lacuna in the planning system over the Minister’s ability to dictate national policy at all. The current arrangement is a fudge. In Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37, Lord Carnwath ruled that the power to make national planning policy comes from “powers derived, expressly or by implication, from the planning Acts which give him (the Minister) overall responsibility for oversight of the planning system”, but that is not the same as an express statutory duty and power to make national planning policy, which a Minister had between the Town & Country Planning Act of 1943 and the repealing of the relevant section within it in 1970.

A Secretary of State has then – and has always had – ultimate responsibility for every aspect of the English planning system, but the NPPF, which sets out the Government’s vision for that system, presently has a “lesser” status than local plans that can often be years out of date and sometimes are out of date immediately upon adoption. Statutory NDMPs would address what is, when viewed from first principles, national policy’s disproportionally small influence.

Ultimately perhaps, as above, the question as to whether NDMPs are statutory or non-statutory comes down to boldness and vision.

The BBC’s Chris Mason has written about the mantra of those at the top of Government being "visible proofpoints", which is “Westminster speak for cranes in the sky and shovels in the ground – things they can point at which people might associate with progress.” If those at the top of Government really do want cranes in the sky and shovels in the ground, and sooner rather than later at that, then NDMPs should be statutory.

As is noted in the introduction to this Public First report by Chris Katkowski KC, NDMPs “provide the Government a golden chance to cut through the ever-growing thicket of planning policies that, while generally well-intentioned, have cumulatively made it much too hard and complex to build desperately needed new homes and workplaces. The creation of NDMPs will also reduce the number of policies that local authorities need to make in their local plans, freeing them up to spend more time on issues that are specific to their area.”

The benefit of statutory NDMPs is perhaps best exemplified by imagining how they could resolve the situation in London where development is grinding to a halt amidst 542 pages of London Plan and 2,500 pages of SPG, LPG and Practice Notes, which collectively duplicate or deviate from the requirements of the NPPF (and other regulatory regimes) and then sit alongside further requirements and standards set by the local plans of its constituent Boroughs.

Non-statutory NDMPs are much less likely to cut through the ever-growing thicket, which is well-illustrated by the Court of Appeal recently dismissing a fresh legal challenge to a ministerial statement restricting the ability of local authorities to set higher energy efficiency standards for new housing in their local plans than those set by national building regulations.

Though dismissed, the case highlighted the unresolved "tension" between the statement in question and the "well-established legal principle" allowing councils such autonomy.

Justice Dingemans said he was “left with the impression that the draftsman [of the WMS] did not think through the tension between the intention to use national measures to impose statutory restraints on how far a [council] may set standards exceeding building regulations and the well-established legal principle that a [council] can include in its [development plan document] a local policy which conflicts with national policy, justified, for example, by local circumstances”.

Proceeding with NDMPs on a non-statutory basis would fail to resolve this tension. Indeed, without very careful recasting of the NPPF for plan-making, it has the potential to make matters worse.

As Shakespeare also wrote, it is not in the stars to hold our destiny but in ourselves.