That was the headline on Planning’s website last Friday 28th October, following the Government’s debate in the Lords on the NPPF. But is that actually what she said? It is not what one would expect, because s.38(6) does of course allow plans to be overridden by material considerations. Planning applications are to be decided in accordance with the development plan, but only if material considerations do not indicate otherwise. As Government policy is a material consideration, and if the global economic crisis is also, any plan which does not take them into account cannot be the last word.
Here is how the debate went:
“What is the status of the local plans that have been adopted by local authorities?” asked Lord Reay. “Some of them will have been adopted quite a long time ago. Will they automatically become out of date when the NPPF is adopted? Will they therefore need to be revised or not? Who will decide whether that is the case?”
Pausing there, if a plan was adopted “quite a long time ago” there is a significant likelihood that it is already out of date, even without the NPPF. But the question ignores the fact that age is not everything. The real question is whether there are material considerations which “indicate otherwise” and which relate to the planning application actually being considered. For some applications which are being judged against a quite old plan, there will not have been any material considerations which are relevant and “indicate otherwise”. But in the situation we now have, the strong presumption in favour of sustainable development and the Chancellor’s policy to make the UK a desirable place for inward investment are new emphases, which are of wide application.
Baroness Hanham replied: “My Lords, the local plans will remain part and parcel of the requirements that people have to pay attention to.” That is quite correct, see s.38(6).
“Those that have already been developed can and should be updated. That is going to be done on a fast-track basis. I said earlier that discussions were going on with the inspectorate. Those policies that have relied on the regional
spatial strategies will maintain until and unless they are changed, and with the adoption of the National Planning Policy Framework.”
What does this mean? Allowing for the fact that the Baroness did not have a prepared speech at this stage, I presume “they” in “they are changed” means the local plans. Which is odd, because the revocation of the regional strategies presumably means the policies in them are no longer Government policy, and therefore do not automatically apply. So can’t a local planning authority which allocated land for housing because of the strategy, thereby overriding say a significant piece of environmentally valuable space, now argue that the plan is out of date because the policy which caused it to be written that way has been abandoned, and consequently the allocation of the environmentally valuable space is no longer supportable? Isn’t that one of the consequences of revoking the regional strategies? It is difficult to see what the closing words of the sentence “and with the adoption of the National Planning Policy Framework” add or mean.
She continued:
“Where they are completed, they are the supporting documents; where they are not completed, they will have to be completed as quickly as possible. In between that, account will have to be taken of the National Planning Policy Framework in any decisions being made.” Where does this leave us? Is the NPPF only to apply where the plan has not been completed? And how does that fit with the plain words of s.38(6)?
(And in passing I ask whether it is really desirable to update all the plans now, on fast track basis? How will all
the policies be assessed for modernity? How will strategic environmental assessment be done? And what will all this updating cost? Isn’t this a classic occasion when the flexibility and pragmatism built into the legislation should be used? The plan is always to be read in the light of material considerations. Why ossify the position in a plan? But an authority which wishes to revise and update its plan formally is free to do so.)
Lord McKenzie of Luton (for the Opposition) pressed the Baroness further: “…just for clarity, if there is a local plan which is otherwise bang up to date, would the introduction of the NPPF itself cause that to be out of date or incomplete?”
Baroness Hanham: “The answer to that is no, quite categorically. It is not going to be out of date but the NPPF will then be a matter that has to be taken into account alongside it.”
Which is right isn’t it? The plan is whatever the plan says, and if it was adopted yesterday, it is “up to date”. But if it does not reflect the NPPF, then that is a material consideration to be taken into account when planning applications are considered against the plan, and which may “indicate otherwise”.
If a ‘local plan’ is adopted 1 day and the very next day an event occurs – say an appeal finding that a key site is no longer deliverable – is the plan ‘up to date’? Similarly if a plan hasnt been updated for years, but it has a longstanding policy which events haven’t changed, such as a site in the middle of a floodplain, which climate change has only made wider not smaller – is the materiality of that policy any less – does it matter if it is ‘up to date’. The point im trying to make is a simple one the age of a policy or plan by itself is not material, which I seem to remember one PPG at one point saying – what is is whether it is still relevant in the light of events and evidence.