Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.