Planning and Compulsory Purchase Act 2004

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In a recent judgment, the High Court addressed the proper interpretation to be given to s.38(6) of the Planning and Compulsory Purchase Act 2004.

In R (on the application of Hampton Bishop Parish Council) v Herefordshire Council & others (2013) the High Court addressed the proper interpretation to be given to s.38(6) of the Planning and Compulsory Purchase Act 2004, which requires that a determination made under the planning acts must be made in accordance with the development plan unless material considerations indicate otherwise.

A judgement (Colman v SoS for Communities and Local Government) which stated that 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".

This principle is reflected in s.38(6) of the Planning and Compulsory Purchase Act 2004, which essentially requires that a determination made under the planning acts must be made in accordance with the development plan unless material considerations indicate otherwise. A simple interpretation of this would suggest that a decision-maker must first consider whether the development proposal is in accordance with the development plan and then consider whether any material considerations justify departing from policy, thereby treating each as “conceptually distinct”.

However, in this more recent case, Hickenbottom J. held that s.38(6) did not require a rigid two stage process. The judge commented that other material considerations can be "inextricably interwoven" with considerations within the plan, for example when the NPPF presumption of sustainable development becomes of direct application. Hickenbottom J. agreed with previous judgements that decision-makers should have a wide discretion as to how they meet the requirements of s.38(6) and that this can include a one-stage process where appropriate. The judge held that as long as development plan policies are properly understood and engaged with and proper regard is paid to the statutory priority of the development plan, decision-makers need not expressly determine whether a development proposal is in accordance with the development plan.
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