Section 38(6): why the local plan comes first
The determination must be made in accordance with the development plan unless material considerations indicate otherwise. Here is how that sentence shapes every planning statement.
Section 38(6) of the Planning and Compulsory Purchase Act 2004 is the sentence the whole English planning system hangs from. If regard is to be had to the development plan for the purpose of any determination under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise. Twenty-nine words that set a statutory presumption in favour of the adopted plan and put everything else, including national policy, in the second category.
Consultants who write planning statements that open with the Framework are writing them the wrong way round.
What the subsection commands
Three things follow directly from the wording.
The plan comes first. The decision maker starts by identifying the development plan, working out what its policies mean, and deciding whether the proposal accords with it read as a whole.
The plan is not conclusive. Material considerations can indicate a decision otherwise than in accordance with the plan, and where they do, the decision maker may depart from it, giving reasons.
The duty is on the determination, not on the recommendation. It binds officers under delegated powers, planning committees, and inspectors on appeal alike, and section 70(2) of the Town and Country Planning Act 1990 requires regard to be had to the plan and to other material considerations in the same way.
The courts have drawn a further line that matters in practice. Interpreting what a policy means is a question of law for the court, while the weight to be given to a policy or to any other material consideration is for the decision maker, subject only to rationality. So an argument that an officer misread a policy is a legal argument. An argument that they gave it too little weight usually is not.
Development plan, then everything else
The development plan for a site is the adopted local plan, together with any made neighbourhood plan, any adopted minerals and waste plan, and in London the London Plan. It is not the emerging plan, not the supplementary planning documents, and not the National Planning Policy Framework.
Those other documents are material considerations. A supplementary planning document can carry substantial weight where it was properly consulted on and is consistent with the plan, but it cannot introduce policy that the plan does not support. National policy is a material consideration of considerable importance, and it operates through section 38(6) rather than around it.
Read the plan as a whole. Development plans are internally imperfect and a proposal will often accord with some policies and conflict with others, so the statutory question is whether it accords with the plan taken overall rather than whether it satisfies every policy in it.
One further change is coming. The Levelling-up and Regeneration Act 2023 provides for National Development Management Policies, which would sit within the statutory framework rather than outside it and would take precedence over conflicting development plan policies. As at September 2026 those policies have not been brought into effect, so check the position before relying on any description of how they will work.
How officers structure a report around it
A well-written officer report follows the same sequence every time, and a planning statement that mirrors it is easier for the officer to adopt.
- Identify the development plan and the policies most important for determining the application.
- Interpret those policies and apply them to the proposal, policy by policy.
- Reach a conclusion on whether the proposal accords with the plan read as a whole.
- Identify the other material considerations, including national policy, consultation responses, appeal decisions and any published guidance.
- Weigh those considerations and state whether they indicate a decision otherwise than in accordance with the plan.
- State the conclusion and the reasons.
Writing the case in that order does two things. It forces you to confront the policy conflicts rather than skate past them, and it produces a document the officer can lift from.
What happens when policies are out of date
Age alone does not disapply a policy. A policy in an adopted plan remains part of the development plan until the plan is replaced, however old it is, and section 38(6) still applies to it. What changes is the weight.
Where a policy is out of date, whether because circumstances have changed, because it is inconsistent with current national policy, or because the authority cannot demonstrate the housing land supply that national policy requires, the decision maker may give it reduced weight as a material consideration. That is a judgement, and it has to be reasoned rather than asserted.
The presumption in favour of sustainable development, usually called the tilted balance, then operates as a material consideration that can indicate a decision otherwise than in accordance with the plan. It does not repeal section 38(6). It works through it, which is why a statement that jumps to the tilted balance without first working through the plan is starting halfway down the analysis.
The August 2026 Framework reorganised national policy around policy codes rather than paragraph numbers. Cite the current code and name the edition, because a reader holding the December 2024 edition is looking at different numbering.
The relationship with statutory duties
Section 38(6) is not the only statutory duty in play. Where a listed building or its setting is affected, the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes duties to have special regard to preserving the building, its setting and any features of special interest, and to pay special attention to the character and appearance of a conservation area. Those duties sit alongside the plan-led duty and the courts have treated them as attracting considerable importance and weight.
That has a drafting consequence. Where heritage is engaged, deal with the statutory duty explicitly, before the balancing exercise, and support it with an assessment of the setting of the heritage asset rather than a conclusion. Habitats, equalities and highway duties work in a comparable way, each with its own statutory wording.
Illustrative example: two adopted policies in conflict
This is illustrative rather than a real case. A plan contains a policy protecting employment land from other uses and a policy supporting residential development within the settlement boundary. A proposal for eight flats on a small vacant workshop site engages both, and they point in opposite directions.
Section 38(6) does not tell you which policy wins. It tells you to reach a view on whether the proposal accords with the plan as a whole, and that means looking at the plan's strategy: what the employment policy is protecting the land for, whether the evidence base still supports that designation, how the plan expects windfall housing to come forward, and whether any policy in the plan sets a hierarchy.
The statement should say plainly that there is a conflict, explain the reasoning that resolves it, and then move to the material considerations. Where the marketing evidence shows no viable employment demand, that is a material consideration going to weight. The design and access statement then has to show that the residential scheme is acceptable on its own terms, because a policy argument does not survive a poor layout.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
Browse the report types on PlanScope to draft the policy sections of your submission. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
What does section 38(6) actually say?
That where regard is to be had to the development plan for the purpose of any determination under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise. It creates a statutory presumption in favour of the adopted plan and places everything else, including national policy, in the category of material considerations.
What counts as the development plan?
The adopted local plan, any made neighbourhood plan, any adopted minerals and waste plan, and in London the London Plan. Emerging plans, supplementary planning documents and the National Planning Policy Framework are not part of it. They are material considerations, which can carry substantial weight but operate through section 38(6) rather than around it.
Does an old policy stop applying?
No. A policy in an adopted plan remains part of the development plan until the plan is replaced, and the statutory duty still applies to it. What changes is the weight the decision maker gives it, which can be reduced where the policy is inconsistent with current national policy or overtaken by events. That judgement has to be reasoned.
How does the tilted balance interact with section 38(6)?
The presumption in favour of sustainable development operates as a material consideration that can indicate a decision otherwise than in accordance with the plan. It does not replace the statutory duty. A planning statement that opens with the tilted balance without first working through the development plan has started halfway down the analysis.
Who decides what a policy means?
Interpretation of a policy is a question of law for the court, while the weight to be given to it is for the decision maker, subject to rationality. That distinction matters at appeal and in the courts: arguing that an officer misread a policy is a legal argument, whereas arguing they gave it too little weight usually is not.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.