Davis Brock at the Plan-It Law blog stated that the presumption dated from 1923. I asked him for a source. Thanking him for his reply
Michael Harrison Q.C. who later became Mr Justice Harrison is my source. He wrote in the JPL in 1992 that there was a 1923 Government Circular stating that “the presumption should always be in favour of the person seeking consent to interim development, and obstacles should not be placed in the way of such development, except in the case where it is clearly detrimental to local interests and needs“.
I referred to that in my JPL article in the January 2011 issue. There has been a consistent line of circulars since 1923.
Martin Goodhall has also referred in the past to its common law origins.
From the context it must have been a circular on the Chamberlain Housing Act of 1923 which introduced Interim Development Orders.
The difference of course between then and now is that ‘local interests and needs’ apply apply against the presumption where you have an up to date plan. Of course we have sustainable thrown into the mix, but only on one side of the equation as a device for saying yes but not as a device for saying no. There is no policy in para. 14 of the NPPF to say no to unsustainable development.
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What is or was the status of a 1923 Circular by the Ministry of Health? Or even a DOE Circular 9/76, which dealt with the Dobry Report about speeding up development control?
There is need to differentiate between law and policy. Sir Peter Hall, in his article in Planning (12 August) says that “the presumption in favour of development was enshrined in the 1947 Act and the regulations that followed it” suggesting that “this has been the position for more than 60 years”. I believe that this is wrong. I believe that there is no legislative basis – primary or secondary – to support this. The basis is one of policy, which can be changed or, indeed, superseded by legislative requirements, such as S54A to the 1990 Act, which restored the status of the development plan as the primary consideration. In legal terms, I would suggest that an extant Circular could be a material consideration, but those that have been revoked can have no status.
It would appear that the draft NPPF is trying to reinvent this “wheel” but in a confusingly different form – strongly endorsing a plan-led approach (eg para 24), whilst essentially seeking to countermand the legislative position by encouraging developers and planners to explore reasons for not determining applications in accord with the development plan.
The draft NPPF is therefore sending mixed/confusing messages to both developers and planners and opening up a field day for lawyers and consultants to argue why their scheme should proceed even though it does not comply with the plan.
Was just trying to pin down the historical point of original micheal, rather than its status
You are right its is a point of policy – but one rooted in past precedent – which is itself based on common law. Unlike say French law which operates on the Roman Law principle that you could only do what the law says English common law operates on the principle that you can do anything other than what the law prevents.
I note that even after the 1991 act the ‘presumption’ stayed around, but in a headscratching form in PPG1 for a few years – cant pin down the exact date it went PPS1? You are right that policy since then did not contain it – since 2005 general principles where a development plan didnt apply there was no presumption either way – but since the revised PPS4 came in we had a watered down form of the Barker Report ‘presumption’ now in the NPPF we have it in its full bloodied form.
Im not defending the ‘presumption’ at all, I think its David Brocks JPL article this year you need to take issue with – or raise on his Plan-It Law blog.
http://ministryofhealthcircular3681922.shutterfly.com/pictures/8
Link doesn’t work! 404 error!
ops the link is broken
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All this was changed when decisions had to determined in accord with the development plan, unless material considerations indicate otherwise. Essentially a presumption in favour of developments in accord with the development plan.