Old development plans

November 24th, 2016

Should planning policies be given reduced weight on account of their age? No, says the Court of Appeal in Gladman Developments Ltd v Daventry District Council (2016) EWCA Civ 1146.  In accordance with paragraph 215 of the NPPF due weight should be given to relevant policies in existing plans according to their degree of consistency with the NPPF: the closer the policies in the plan to the NPPF, the greater the weight they may be given.

Sales LJ formulated the general approach to be adopted to consideration of development plan policies which are old in the following way:-

(1)       Since old policies are part of the development plan, the starting point, for the purposes of decision-making, remains Section 38(6) of the 2004 Act. This requires that decisions must be made in accordance with the development plan – and, therefore, in accordance with those policies and any others contained in the plan – unless material considerations indicate otherwise. The mere age of a policy does not cause it to cease to be part of the development plan. The policy continues to be entitled to have priority given to it in the manner explained by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, HL, at 1458C-1459G.

(2)       The weight to be given to particular policies in a development plan, and hence the ease with which it may be possible to find that they are outweighed by other material considerations, may vary as circumstances change over time, in particular if there is a significant change in other relevant planning policies or guidance dealing with the same topic. As Lord Clyde explained:

“If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance” (p. 1458E).

(3)       The NPPF and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations. Paragraph 215 sets out the approach to be adopted in relation to old policies, and as explained above requires an assessment to be made regarding their consistency with the policies in the NPPF. The fact that a particular development plan policy may be chronologically old is, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF.

(4)       Since an important set of policies in the NPPF is to encourage plan-led decision-making in the interests of coherent and properly targeted sustainable development in a local planning authority’s area significant weight should be given to the general public interest in having plan-led planning decisions even if particular policies in a development plan might be old. There may still be a considerable benefit in directing decision-making according to a coherent set of plan policies, even though they are old, rather than having no coherent plan-led approach at all.

(5)       Paragraph 49 of the NPPF creates a special category of deemed out-of-date policies, i.e. relevant policies for the supply of housing where a local planning authority cannot demonstrate a five-year supply of deliverable housing sites. The mere fact that housing policies are not deemed to be out of date under paragraph 49 does not mean that they cannot be out of date according to the general approach referred to above.

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