Section 38(6) and the development plan in decisions

Section 38(6) of the Planning and Compulsory Purchase Act 2004 tells a decision maker what to do with the development plan: where regard is to be had to the plan, the determination must be made in accordance with it unless material considerations indicate otherwise. That is a presumption, and it can be displaced. Applying it properly means answering three questions in order. What is the development plan for this site, what does it say when read fairly, and does anything outside the plan point strongly enough the other way.

Get that sequence wrong and the reasoning collapses even where the outcome would have been the same. Inspectors read officer reports looking for it.

What the subsection actually says

The wording bites only "if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts". Section 70(2) of the Town and Country Planning Act 1990 supplies that regard for planning applications. It requires the authority to have regard to the provisions of the development plan so far as material to the application, to any local finance considerations, and to any other material considerations.

Two statutes therefore work together. Section 70(2) puts the plan on the table alongside everything else. Section 38(6) then lifts it above the rest by requiring accordance unless displaced.

Accordance is judged against the plan read as a whole. A proposal can conflict with one policy and still accord with the plan overall, and the reverse is equally possible. The House of Lords set that approach out in City of Edinburgh Council v Secretary of State for Scotland in 1997, on the equivalent Scottish provision, and it has governed English practice since.

What counts as the development plan

Section 38(3) defines the plan for an area in England outside Greater London as the adopted or approved development plan documents taken as a whole, together with any neighbourhood development plan made for the area. In Greater London the spatial development strategy, meaning the London Plan, forms part of it under section 38(2).

In practice that usually means a mix of documents of different ages. A 2019 local plan may sit alongside saved policies from a 2006 plan, a minerals and waste plan prepared by the county, a made neighbourhood plan and, in London, the London Plan 2021. All of them are the plan. None of them is national policy.

What is not part of the development plan is worth stating plainly, because applicants get it wrong every week. Supplementary planning documents are not. Design guides and parking standards adopted as supplementary guidance are not. Emerging plans are not until adopted. The National Planning Policy Framework is not part of any development plan either, and the Supreme Court said so in Hopkins Homes v Secretary of State for Communities and Local Government in 2017. The Framework is a material consideration of considerable weight, which is a different thing.

The Levelling-up and Regeneration Act 2023 added a further layer. It inserts provisions allowing National Development Management Policies to be designated, and where the development plan conflicts with such a policy the conflict is to be resolved in favour of the national policy. Check whether any have been designated before you apply the ordinary sequence, because that changes the order of operations rather than the wording of section 38(6) itself.

Reading the plan as a whole

Policy interpretation is a matter of law for the court, and policies are read objectively in their context rather than as a contract. The Supreme Court settled that in Tesco Stores v Dundee City Council in 2012. Application, once the meaning is fixed, is a matter of planning judgement.

For a practical test, work through each policy the site engages and record a finding of compliance, conflict or neutrality against each. Then stand back. A scheme that meets the housing allocation, the design policy and the drainage policy, and misses the private amenity space standard by a few square metres, accords with the plan. A scheme in the countryside outside any settlement boundary, contrary to the spatial strategy, does not, however good the architecture. Settlement boundaries tend to do more work in this exercise than any other single policy.

Avoid the temptation to count policies. Four minor compliances do not outweigh one breach of the strategy. Weight follows the importance of the policy to the plan's purpose.

Conflict between policies in the plan

Sometimes the plan contradicts itself. A site is allocated for employment in one document and designated as Local Green Space in another, or the county waste plan safeguards a site the district plan allocates for housing.

Section 38(5) resolves this. The conflict must be settled in favour of the policy contained in the last document to be adopted, approved or published. That is a mechanical rule about documents rather than about policies, so identify the adoption dates before arguing about the merits.

The rule only applies to genuine conflict between two development plan documents. Tension between two policies inside the same document is not a section 38(5) question at all. It is resolved by reading the plan as a whole and exercising judgement, and the officer report should say which policy carried more weight and why.

Where material considerations indicate otherwise

A material consideration is anything that relates to the use and development of land and to the planning merits of the proposal. National policy, site constraints, the planning history, highway safety, heritage, the fallback position and the absence of a five year housing land supply are all capable of being material. Personal circumstances rarely carry much weight, though they are not excluded.

The statutory language sets a real threshold. Material considerations must "indicate otherwise", meaning they must point towards a different decision with enough force to overcome the plan. A consideration that is merely relevant does not do that.

The Framework supplies most of the heavy material considerations in English practice, including the tilted balance where the relevant policies for determining the application are out of date. Always state which edition of the Framework you are citing, because the December 2024 edition renumbered the paragraphs and the edition published on 17 August 2026 replaced paragraph numbers with policy codes. A written ministerial statement can also become a material consideration overnight, which is why the date on your policy schedule matters.

Out of date plans and the weight that survives

An old plan is still the development plan. Section 38(6) does not switch off at a plan's end date, and there is no provision for policies to expire. What changes is weight.

Where a policy is out of date, the decision maker gives it reduced weight as a material consideration and the balance shifts. Judging that is fact sensitive. A design policy written in 2004 may still be perfectly serviceable, while a housing requirement figure from the same document is probably not. Deal with each policy separately and explain the reasoning for each, rather than dismissing the plan wholesale.

The duty to cooperate is the reason many authorities are stuck with ageing plans, which is worth understanding when you are arguing about weight rather than about content.

Recording the exercise in your submission

The section 38(6) analysis belongs in the Planning Statement, in a form the case officer can lift into the report. Set out the development plan documents and their adoption dates, tabulate the relevant policies with a compliance finding against each, state the overall conclusion on accordance, then list the material considerations and say whether they indicate otherwise.

Illustrative example: an infill dwelling inside a settlement boundary conflicts with a garden land policy but complies with the spatial strategy, the design policy and the parking standard. The statement concludes accordance with the plan as a whole, then records the Framework's support for effective use of land as a consideration reinforcing rather than displacing that conclusion.

Where the council refuses on policies you have addressed, or fails to determine, the same schedule becomes the backbone of the appeal statement. A deemed refusal appeal is far easier to run when the policy analysis was written properly the first time.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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