Draft National Policy Planning Framework already in force?

The draft National Policy Planning Framework ("NPPF"), published by the Government for comment on 25 July 2011, proposes significant change for the planning system. The new NPPF recommends a presumption in favour of sustainable development where a Local Plan is absent, silent, indeterminate or where relevant policies are out of date.

The Government's proposal will go some way to address the perceived problem that the planning system is acting as a break on growth by slowing the delivery of new jobs and business, and that reform of a complex and bureaucratic planning system is necessary for economic recovery.

Planning inspectors, who have powers to determine disputes which arise when local authorities refuse to grant planning permission, have recently been issued with guidance on the application of the draft NPPF.  The Planning Inspectorate's latest guidance stipulates that the NPPF in its draft form is to be considered by planning inspectors in current appeal and development plan casework, effectively giving the proposals effect before the consultation on the draft NPPF has closed, and well before the NPPF been officially adopted.

The National Trust and other environmental bodies have voiced public criticism about the appropriateness of this advice and, in response to that, Sir Michael Pitt, the Chief Executive of the Planning Inspectorate, has said this advice was given to planning inspectors "as a matter of normal procedure simply stating what always applies when draft policy is issued for consultation."

Inspectors have a duty to take into account all relevant matters or "material considerations" when determining planning applications.  The recent High Court case Cala Homes reaffirmed that central government policy can be taken into account as a "material consideration" in development control decisions.  There is, therefore, nothing unusual about the steps the Planning Inspectorate has taken, as draft policies are always considered to be material considerations.  Indeed, if inspectors did not take notice of draft planning policies their decisions could be open to challenge for failing to take into account material considerations.

Accordingly, planning inspectors are permitted to give weight to the proposed presumption in favour of sustainable development and the need to support economic growth through the planning system, although exactly how much weight they give it will be a matter for their discretion.   

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.