I have just read a case that contains some helpful reminders of the way in which the NPPF requires out of date policies to be considered in the determination of a planning application, and how this reflects primary legislation.
s38(6) Planning and Compulsory Purchase Act 2004 requires planning applications to be determined in accordance with development plan policies unless material considerations indicate otherwise. The case contains clear reminders that the NPPF is just one of the material considerations which must be taken into account pursuant to this legislation.
To quote the Court, “it is a fundamental and long established principle of planning law that something identified as a ‘material consideration’ is conceptually distinct from considerations identified in the development plan and does not ceteris paribus carry the same weight as an aim or consideration identified in the development plan itself.”.
The Court found that there was no legal flaw in the Inspector’s approach in this case and he was entitled to give decisive weight to the NPPF. A reminder was also given that the balance of considerations is for the decision-maker to strike.
The case (Nita Colman V (1) Secretary Of State For Communities & Local Government (2) North Devon District Council (3) RWE NPower Renewables Ltd (2013)) concerned an application for consent for nine wind turbines in North Devon, and challenged the grant of consent by an Inspector following a refusal by the local authority.
The Inspector concluded that the relevant policies (which the Court agreed must mean the express terms of the policies, and not any implicit limitation) were not up to date and therefore carried less weight that the presumption in favour of granting consent in the NPPF.