Thu, 02 Jun 2016
Secretary of State for Communities and Local Government v BDW  EWCA Civ 493, is a case about the application of the cornerstone of development management decisions: s38(6) Planning and Compulsory Purchase Act 2004. It is of some practical importance to practitioners, given its subject matter, and because Lord Justice Lindblom does two things in the judgment. Firstly, he re-emphasises that the approach to planning decisions is not rigid. The decision maker has some latitude in how to approach the policy position. Secondly, he very helpfully and succinctly summarises the law. He said this:
Without seeking to be exhaustive, I think there are five things one can fairly say in the light of the authorities.
First, the section 38(6) duty is a duty to make a decision (or “determination”) by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan. Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognising that they may sometimes pull in different directions. Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides “whether the development plan should or should not be accorded its statutory priority”, and secondly, “if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration”. Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole. And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance.
Click here to download a copy of the judgment.
Richard Kimblin QC appeared for the Secretary of State.
Hugh Richards appeared for BDW.