Development Plans and Plan-making
| Author | William Webster |
| Pages | 21-63 |
Chapter 2
Development Plans and Plan-making
INTRODUCTION
2.1 Before dealing with plan-making, it should be noted at the outset that the following factors are core elements of modern planning law:
ƒ the concept of development;
ƒ the requirement of planning permission;
ƒ the control over the grant of planning permission which derives from national and local policy frameworks;
ƒ that in dealing with an application for planning permission, the local planning authority (LPA) must always have regard to the provisions of the development plan,
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2.2 ‘Development’, for these purposes, means ‘the carrying out of building, engineering, mining or other operations in, on, over or under land,
2.3 Planning permission is required for the carrying out of any development. Permission may be the result of a specific application to an LPA and may relate to proposed or past development and, in the case of the latter, may retrospectively validate development which has already taken place without the requisite planning permission. Sometimes, permission may be granted by a development order made by the Secretary of State (known as permitted development rights)
or by virtue of a local development order made by the LPA.
NATIONAL PLANNING POLICY FRAMEWORK
2.4 In England and Wales, the current planning system is underpinned by policy considerations at both the national and local level. At the national level, most policy is now contained in the National Planning Policy Framework 2012
Framework 2012 (NPPF). Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under TCPA 1990, s 70(2), and PCPA 2004, s 38(6), its relevance to a planning decision is as one of the other material considerations to be weighed in the balance (see judgment of Richards LJ in R (Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878 at [30]). It is, for instance, for the decision-maker to decide what weight should be given to NPPF policy in so far as it may be relevant to the proposal. However, because this is government policy, it is likely to command significant weight, but the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense (see R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] 1 P & CR 22 (at [50]); Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government and Hinckley and Bosworth Borough Council [2014] EWHC 754 (Admin) (at [46]); and Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin) (at [62] and [70]). Planning policies and decisions must also reflect and, where appropriate, promote relevant EU obligations and statutory requirements. The NPPF also sets out that decision-takers may give weight to relevant policies in emerging plans according to their stage of preparation, the extent to which there are unresolved objections to relevant policies and their degree of consistency with policies in the NPPF (see National Planning Practice Guidance (NPPG) at Paragraph: 019 Reference ID: 12-019-20140306).
Development Plans and Plan-making 23
(NPPF), which was issued in March 2012 and sets out the Government’s planning policies for England and how these are expected to be applied.
Presumption in favour of sustainable development
2.5 Central to the NPPF is the presumption that development should be sustainable, which, as it states in paragraph 14, should be seen ‘as a golden thread running through both plan-making and decision-taking’.
2.6 Paragraph 14 provides:
For plan-making this means that:
♦ [LPAs] should positively seek opportunities to meet the development needs of their area;
♦ local plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
10) the independent examiner will consider whether, having regard to national policy, it is appropriate to make the neighbourhood plan. NPPF, para 11 provides that planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
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– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies [in the NPPF] taken as a whole; or
– specific policies [in the NPPF] indicate that development should be restricted.
For decision-taking this means:
♦ approving development proposals that accord with the development plan without delay; and
♦ where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
– any adverse effects of doing so would significantly and demonstrably...
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