Legal Viewpoint: Pinpointing the policy conflicts that matter most

A recent Court of Appeal case involving a caravan site in Cornwall is a reminder of how local planning authorities should go about exercising the requirement under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine planning applications in accordance with the development plan unless material considerations indicate otherwise.

The case dealt with a planning application for additional holiday caravans and lodges at an existing caravan site. The development plan contained policies that supported upgrading existing tourism facilities and other policies that prohibited development in areas of great landscape value (AGLV) where it would cause harm to the character of their landscape. The officer’s report identified all the correct policies and concluded that the proposal’s overall impact on the AGLV would be slight to moderate. As it was in accordance with the other policies, planning permission was granted.

In the High Court, the permission was quashed on the basis that a clear conflict with the development plan had been identified and there had been no discussion of whether material considerations might allow a departure. There was criticism that the officer’s report should have made it clear that the conflict with the AGLV policy required the application to be refused, unless there were material considerations that indicated otherwise. The court concluded that members did not appreciate that they were making a decision that did not accord with the development plan.

The Court of Appeal overturned this decision and reinstated the permission. It noted that the officer had accepted that there was a breach of the development plan but had made it plain that the proposal was in accordance with the plan when taken as a whole. Referring to previous case law, it held that the section 38(6) duty can be met where the decision-maker establishes whether or not the proposal accords with the development plan as a whole, given that it is not at all unusual for development plan policies to pull in different directions and a judgement therefore has to be made.

It is simply not the case, the court observed, that if there is a breach of one policy in a development plan, a proposed development cannot be said to be “in accordance with the plan” overall. Otherwise, it remarked, numerous applications would have to be referred to the secretary of state as departures from the development plan.

Of course, all policies are slightly differently drafted. In this case, the AGLV policy prohibiting development that causes harm was not even qualified by use of a term such as “generally” to soften the expression “will not be permitted”. Regardless, the court held that none of this meant that the policy was intended to operate to the exclusion of other policies, or that it rendered those other policies irrelevant to the question of whether a particular proposal accorded with the development plan as a whole. The AGLV policy did not purport to limit the operation of any other policy in the plan, it noted.

In deciding whether, given a conflict with one or more policies, a particular proposal is still in overall accordance with a development plan, three factors were helpfully set down by way of a test: how firmly a policy supports or conflicts with a proposed development, the relative importance of the policy to the plan’s overall objectives, and the extent of the breach of policy.

In my experience, decision-makers often find that proposals are not in accordance with the development plan but that other material considerations indicate that permission should be granted where the conflict with policy results from harm on a personal level - for example, impact on a neighbour’s amenity through overshadowing. This can be reconciled with the test for when such a conflict prevents overall compliance with development plan policies because a single breach has too  severe an impact on one or a few individuals. As in all walks of life, disagreements on detailed matters need not be a barrier to finding overall agreement.

Case: R (Corbett) v Cornwall Council; Date: 9 April 2020; Ref: [2020] EWCA Civ 508

Alex Ground is a planning partner at Russell-Cooke

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