There’s a facetious answer, a political answer, a legal answer and a practical answer.
The facetious answer?
2 kg. (It’s a whopper).
The political answer?
I’ve heard Deputy Mayor Jules Pipe confirm at a London First event that the Mayor will immediately take it into account. The Mayor’s website says:
“The current 2016 consolidation Plan is still the adopted Development Plan. However the Draft London Plan is a material consideration in planning decisions. It gains more weight as it moves through the process to adoption, however the weight given to it is a matter for the decision maker.”
The legal answer?
It’s not totally totally up to the decision maker. That statement suggests that the Mayor or the boroughs could give controversial new policies in the plan (for instance increased restrictions in relation to student housing schemes) significant weight even at this stage, before the outcome of the consultation process which runs to 2 March 2018 or before the inspector has reported following the examination in public anticipated for Autumn 2018. That is not quite right.
In my view, paragraph 216 of the NPPF undoubtedly applies to the London Plan as a statutory development plan:
“From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:
•the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);
•the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and
•the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”
The application of paragraph 216 was closely examined by the High Court in Woodcock Holdings Limited v Secretary of State (Holgate J, 1 May 2015). A decision by the Secretary of State to dismiss (against his inspector’s recommendations) an appeal for 120 homes and related development in West Sussex was quashed. One of the grounds relied upon by the court was that the Secretary of State, in deciding to place significant weight on an emerging neighbourhood plan which had not undergone examination had not considered the second and third criteria within paragraph 216:
“In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole. It is not a policy which simply makes the trite point that decision-makers may give weight to relevant policies in emerging plans. Rather it is a policy that they may do so “according to” the three criteria or factors which follow. The policy clearly stipulates that the three criteria are relevant in each case. Of course, when dealing with a particular planning proposal it may be the case that the relevant policies in a draft plan have not attracted any objections and so it would not be necessary to consider the second criterion beyond that initial stage. But plainly the second criterion is material in each case in order to ascertain whether a relevant draft policy has attracted any objections and if so, their nature, before going on to make an assessment of the significance of any such objections.”
(As an aside, following the quashing the Secretary of State redetermined the appeal, dismissing it again. That second decision was again challenged and the Secretary of State consented to judgment. Lo and behold, third time round the Secretary of State has now finally allowed the appeal in a decision letter dated 7 December 2017. Never give up!)
Applying Woodcock, I do not see how a decision maker can apply significant weight to the draft London Plan’s policies before knowing what objections have been made to them. It is presently a wish list (although of course, unlike with for instance local plans, the Mayor can reject the recommendations of the inspector who examines the plan, meaning that if he is sufficiently determined, those wishes are likely to be granted).
The practical answer?
Aside from being able to reject the plan examiner’s recommendations, the Mayor holds another trump card: time. Given the current delays on the part of the Planning Inspectorate, if he directs refusal of a scheme that is referable to him, on the basis of inconsistency with the draft plan, by the time any appeal is heard the plan is likely to have at least reached the examination stage.
The Planning Inspectorate’s most recently published stats make depressing reading:
You can add to that the further delays that often happen with appeals recovered for the Secretary of State’s own determination.
When it comes to challenging decision makers’ reliance on emerging draft policies, justice delayed is justice denied.
Notwithstanding the likely timing difficulty facing anyone seeking to challenge formally the Mayor’s approach, we should surely not accept assertions that the emerging London Plan should be accorded significant weight in decision making, particularly when inconsistent with the current statutory development plan (namely the current London Plan, any adopted borough plan and any made neighbourhood plan). Otherwise, will people feel that it is worthwhile investing time and resources in the examination process? What will be the point of the examination?
Simon Ricketts, 15 December 2017
Personal views, et cetera
SIMONICITY 