The basics #4 - not going to plan
How breaching policies & departing from plans fits into a plan-led world
If you’re sitting comfortably for 2 minutes, join me for another helping of #planorak #basics.
We have, you may remember, talked a bit about section 38(6) of the Planning and Compulsory Purchase Act 2004 - in particular, what adds up to a “material” planning consideration and how the NPPF’s tilted balance fits into section 38(6).
But before we come anywhere near material considerations (including the NPPF), we need to know whether granting permission would accord with the development plan.
What does that actually mean? And what happens if your scheme doesn’t accord with the plan?
On according with the plan, here are 5 headlines on the law:
Policies in a plan can pull in different directions: City of Edinburgh.
When that happens (i.e. in almost every case!) the decision-maker can give greater weight to some policies over others - having regard to e.g. the importance of the polices complied / infringed, and the extent of compliance / breach: Cummins.
What matters under section 38(6) is whether a proposal accords with the development plan as a whole - not whether it complies with each and every policy: Milne.
And that’s a question of judgment, not of adding up policies in the “breach” column and the “comply” column. Proposals can breach lots of policies in a plan, but still comply with it as a whole: Dignity Funerals (full disclosure: I acted for Breckland).
To undertake the section 38(6) duty properly, decision-makers need to decide (normally explicitly) whether or not the proposal accords with the development plan as a whole: Hampton Bishop.
Those headlines might look simple. Some may even look obvious. But they required re-stating only this month by the Court of Appeal in a Parish Councillor’s unsuccessful challenge to the grant of permission to extend a caravan site in Cornwall. Some policies in the plan worked in favour of the scheme, some against, and the Court held that resolving that tension was a question for the Council’s planning judgment.
So much for scheme which accords with the plan as a whole. What if your scheme doesn’t?
In a “plan-led” system, governed by a statutory presumption in favour of the development plan, isn’t that the end of the story?
The foundational text on this topic remains the City of Edinburgh case in the House of Lords which confirms that:
The development plan does not have absolute authority.
The decision-maker doesn’t have to “slavishly adhere” to the plan.
In particular, the plan’s “provisions may become outdated as national policies change” - see my earlier post on outdatedness.
The authority can to depart from the development plan if material considerations indicate otherwise - see my earlier post on the on the meaning of that harmless little phrase.
And deciding where the balance lies between the plan on the one hand and other material considerations on the other is a question for the decision-maker’s judgment.
And don’t forget - the “presumption” in favour of the development plan means the plan is the starting point for decisions. But it does not mean that the plan gets greater weight than other material considerations: West Berkshire. Weight is always a question of judgment for the planners, not a matter for the lawyers.
All of which takes us to two important (but often counter-intuitive) points all #planoraks should remember:
Schemes can infringe lots of plan policies and still accord with the plan; and
Decisions to grant planning permission which don’t accord with the plan can still comply with the statutory presumption in favour of the plan.
Stay well, #planoraks.
