Advice to Debbie Bryce

Enquiry

• From: Debbie Bryce
• Date advice given: 30 June 2021
• Enquiry type: Email

Enquiry about the status of an emerging National Policy Statement for the purposes of making a decision on an application for a Development Consent Order.

Advice given

Your query appears to relate to the weight that a decision maker may attach to an emerging National Policy Statement (NPS). You refer to s105 of the Planning Act 2008 which sets out the matters that a decision maker must have regard to when making a decision on an application for a development consent order (DCO) where no relevant NPS has been designated. “Designated” in this context means that the NPS has been formally approved by Parliament. Therefore, any decision on an application where no designated NPS was in place would need to be made under s105. There may be circumstances where a NPS remains in place at the same time as it is being reviewed and a draft NPS is being consulted on. In those circumstances the application may be determined under s104 (for applications for a DCO where a designated NPS has effect). However, the decision maker may have regard to any draft “emerging” NPS and will need to exercise their judgment about the weight to be attached to the policies in the emerging NPS. This will require the decision maker to consider a range of factors including the maturity of the document and the extent to which it has been subject to public consultation. The Planning Act 2008 sets out a process for the preparation and designation of NPSs in Part 2 (sections 5 to 13): https://www.legislation.gov.uk/ukpga/2008/29/part/2 On a general point, a decision maker for an application for a DCO may take into account any matter they consider to be important or relevant. This may include any emerging national plan, policy or emerging local plan or policy document. It is for the decision maker to decide how much weight to attach to that document.