CA-2024-001754 - [2025] EWCA Civ 990

A decision-maker determining an application for planning permission must have regard to inter alia the provisions of the statutory development plan (s.70(2) of the TCPA 1990) and that determination must be made in accordance with the plan unless material considerations indicate otherwise (s.38(6) of the PCPA 2004).

In Loup v Secretary of State for the Environment (1995) 71 P&CR 175 the Court of Appeal held at p.186 that although s.38(6) of the PCPA 2004 gives priority to the development plan, it does not tell the decision-maker what weight to give to policies of the plan, or to other material considerations. These are matters for the decision-maker to weigh. This statement was approved by the House of Lords in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 at 1458H to 1459A. Lord Clyde added that it is for the decision-maker to assess the relative weight to be given to all material considerations, including the development plan.

Part 2 of the PCPA 2004 deals with local development documents (“LDDs”). Under s.15 of the PCPA 2004 a LPA must prepare and maintain a “local development scheme” (“LDS”). The scheme must specify (inter alia) LDDs which are to be DPDs and therefore the subject of the presumption in s.38(6).

By s.17(3) the adopted LDDs of a LPA, taken as a whole, must set out the authorities’ policies relating to the development and use of land in their area.

DPDs must be prepared in accordance with the LDS (s.19(1) of the PCPA 2004). Those documents must, taken as a whole, include policies designed to secure that the development and use of land in the area of a LPA can contribute to the mitigation of, and adaptation to, climate change (s.19(1A)).

Each LPA must prepare DPDs which identify its strategic priorities for the development and use of land in their area and their policies for addressing those priorities (s.19(1B) and (1C)). In preparing a DPD (or any other LDD) a LPA must have regard to national policies and advice contained in guidance issued by the Secretary of State for Housing, Communities and Local Government (s.19(2)(a)). That guidance may be found in the National Planning Policy Framework (“NPPF”), Planning Practice Guidance and WMSs.

Following consultation on an initial draft of a DPD, the LPA must prepare a further draft which it must submit to the Secretary of State, along with representations on that document, for independent examination by a Planning Inspector under s.20 of the PCPA 2004. One of the purposes of that examination is to enable the Inspector to determine whether the plan is “sound” (s.20(5)(b)).

Upon the conclusion of the examination, the Inspector must provide a report to the LPA with a recommendation as to whether the DPD is to be adopted by the LPA. The Inspector cannot recommend the DPD for adoption, and the DPD cannot be adopted by the LPA, unless inter alia the Inspector judges that the plan is “sound”, whether as submitted for examination, or as subsequently modified (s.20(7) to (7C) and s.23).

The legislation does not define what is meant by the “soundness” of a DPD. But para.36 of the NPPF, to which an examining Inspector must have regard, states that a plan is “sound” if inter alia it enables the delivery of sustainable development in accordance with the policies in the NPPF and other relevant statements of national policy (Footnote: ¹).

A person or body exercising any function under Part 2 of the PCPA 2004 in relation to a LDD (including a DPD) must do so “with the objective of contributing to the achievement of sustainable development” (s.39(1) and (2)). In discharging that obligation, regard must be had to national policies and advice contained in guidance issued by the Secretary of State (s.39(3)).

The Secretary of State, as the central planning authority, has the function of helping to bring coherence and consistency in development control. National policy is part of the framework for consistent, predictable and prompt decision-making. The formulation of national policy is an essential element of securing coherent and consistent decision-making. The power to make such policy derives expressly or by implication from the legislation which gives the Secretary of State overall responsibility for the oversight of the planning system. National policy does not displace the primacy given by s.38(6) of the PCPA 2004 to the statutory development plan. It is an “other material consideration” to which a decision maker must have regard (s.70(2) of the TCPA 1990). The weight to be given to conflict or compliance with the NPPF is a matter of judgment for the decision-maker. It is also a matter for his judgment as to whether other considerations outweigh the priority to be given to the development plan (R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and Regions [2001] UKHL 23; [2003] 2 AC 295 at [139]-[143]; City of Edinburgh Council at [1997] 1 WLR at 1459-1460: Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] 1 WLR 1865 at [19] to [21]; and Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104; [2021] PTSR 1450 at [33] to [34]).

A Planning Inspector determining a planning appeal or examining a draft DPD does not act as a delegate of the Secretary of State but exercises his or her own independent judgment within the framework of national policy set by the government. But that policy is no more than guidance. The national policy-making role “must be exercised consistently with, and not so as to displace or distort, the statutory scheme” (Lord Carnwath JSC in Hopkins at [21]). Local circumstances may justify a departure from national policy in the formulation of local DPD policy, even where the national policy is expressed in unqualified terms (R (West Berkshire District Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] 1 WLR 3923 at [21]-[30]).