Advice to South Derbyshire District Counci

Enquiry

• From: South Derbyshire District Counci
• Date advice given: 28 December 2011
• Enquiry type: Email

Further to our conversation earlier this morning I'd be grateful for clarification on the matters to which the decision-maker must have regard - specifically whether an adopted Development Plan (i.e. an adopted Regional Spatial Strategy or Local Plan) enjoys any particular materiality.

I understand that S105 of the Planning Act 2008, for example, requires that

"(2) In deciding the application the Secretary of State must have regard to—

(a) any local impact report (within the meaning given by section 60(3))submitted to the Commission before the deadline specified in a notice under section 60(2),

(b) any matters prescribed in relation to development of the description to which the application relates, and (c) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State’s decision".

There is no mention of the Development Plan here. But this would seem odd in cases where, for instance, an extant RSS identifies a need for a particular type of infrastructure (e.g. a rail freight interchange) and specifies a broad location.

Presumably, this would simply fall under section (c) as "any other matter important and relevant" but I would be grateful for clarification.

To be clear, the context of my query is that I am trying to gauge whether and how we should be treating, in our emerging LDF Core Strategy, a potential nationally significant infrastructure project, for which there is as yet no notification of an application, but which may come forward relatively shortly.

Advice given

Dear Ian,

I apologise for the delay in replying to your query, I do however, trust that the information below will be of use to you:

As you will be aware, the Planning Act 2008 regime will change in April 2012 with the abolition of the IPC and assumption of its powers by the Secretary of State. From what you say, it seems unlikely that an application will be submitted to the IPC before that date, given the likely duration of the prescribed pre-application process. In those circumstances, the Localism Act 2011 amendments to the 2008 Act will be in force when the application is submitted.

The IPC cannot definitively say how the Secretary of State will approach decisions on NSIPs, but can offer the following analysis based on the legislative provisions.

The 2011 Act amends ss 104 and 105 of the 2008 Act. Those sections as amended respectively deal with decisions where there is a National Policy Statement relating to the type of development proposed (s104) or there is not (s105).

Where there is a relevant National Policy Statement, the Secretary of State will have to determine the application in accordance with it, except in specified circumstances. These include circumstances where the decision maker is satisfied that the adverse impact of the proposed development would outweigh its benefits.

Sections 104 or 105 (as amended) identify matters to which the Secretary of State must have regard in determining applications. Neither section gives any particular weight to any of the matters to which the Secretary of State must have regard. The weight to be given to them will be a matter for the Secretary of State as decision maker.

However, the matters to be considered include Local Impact Reports (LIRs) provided by local authorities under s60 of the 2008 Act. That section merely describes these reports as a “report in writing giving details of the likely impact of the proposed development on the authority's area (or any part of that area)”. The IPC’s current advice on LIRs is in its Advice Note 1, available from the IPC website. It emphasises that the content of the LIR is a matter for the local authority, but suggests a number of items including: Relevant development plan policies; supplementary planning guidance or documents; development briefs or approved master-plans and an appraisal of their relationship; and relevance to the proposals

Planning policy would no doubt form part of the local authority’s assessment of the impact of the proposal on its area, elaborated in its LIR. In coming to a view on the weight to be accorded to the assessment in the LIR, it seems likely that the Secretary of State would take account of matters such as the relevant development plan and its progress through the statutory process.

As you say, there is also of course a ‘catch all’ provision in both ss 104 and 105 enabling the decision maker to have regard to any other matters which the decision maker thinks to be both important and relevant to the decision.

As stated above, we cannot be definitive, but hope this is helpful.

If you have any further queries, please do not hesitate to contact us.