1, To help secure a smooth transition from the old development plan system to the new system in England Schedule 8 of the Planning and Compulsory Purchase Act 2004 made provision for a transitional period of three years in which old style development plans (including structure plans) would continue to have statutory effect. Thus:

the policies in old style plans which were adopted before 28 September 2004 no longer had effect after 27 September 2007 unless they have been saved by Direction of the Secretary of State under Schedule 8 paragraph 1(3) of the 2004 Act (such Directions will in practice be issued by regional Government Offices usually with a covering letter);
the policies in old style plans adopted on or after 28 September 2004 remain in effect for three years following their date of adoption, unless subsequently they are saved by Direction;
policies in old style plans which have not yet reached the end of the three year period are no longer in effect where they have been expressly replaced by a new policy which has been published and is adopted or approved;
policies which have been saved by Direction remain in effect until they are expressly replaced by a new policy which has been published and is adopted or approved. In agreeing to extend saved policies, the Government Office will expect Local Planning Authorities to replace them promptly by policies in Development Plan Documents (or the Regional Spatial Strategy (formerly Regional Planning Guidance) in the case of structure plans).
Regional Spatial Strategy, which includes the London Plan, is not subject to the saving provisions in Schedule 8. From 28 September 2004 RSS became part of the development plan and does not need to be saved to remain in force.

2, In considering whether to extend a saved policy, the Government Office will give reasons for its decision where one or more of the following applies:

the direction to save a policy was made against the wishes of the Local Planning Authority;
the Government Office has had to adjudicate between two parties in deciding whether to make a direction;
it would otherwise be helpful to provide reasons for the Government Office’s decision.

3, Many appeals remain undecided after 27 September 2007 for which no information will have been supplied to the Inspector about the status of the development plan and its policies where the three year transitional period has expired or is about to. The appeal Questionnaire has been updated so that Local Planning Authorities are required to provide a copy of the relevant letter and direction (if and when issued) as part of the appeal documentation. We have also asked Local Planning Authorities to make clear where appropriate that the relevant policy was adopted on or after 28 September 2004 and has not been expressly replaced by a `new’ policy.

4, After 27 September 2007 where the three year transitional period has expired or is about to, if by the time of the hearing/inquiry or the deadline for submission of representations on a written case the Local Planning Authority has not confirmed the status of the policies they are relying on by providing a copy of the direction and schedule, the Inspector (for hearings/inquiries) or our case officers (for written cases) should give them an opportunity to do so. For hearings/inquiries this will involve raising the matter with the Local Planning Authority and may, where necessary, require a short adjournment.

5, However, we have found that not all Local Planning Authorities have responded to case officer requests. Consequently, we have placed details of Government Office saved policies Directions and covering letters (where issued) on our website for ease of reference by the Inspector and all parties. Please note that this information is provided by the Government Offices and we are not responsible for its accuracy or completeness.

6, If, in written cases and despite case officer requests, there is no Direction and schedule on the file indicating the status of the policies on which the parties rely Inspectors should consult our web site to see whether a Direction has been issued and take the following action:

if a Direction has been issued and the relevant policies have been saved the Inspector should go on to decide the appeal;
if a Direction has been issued but the relevant policies have not been saved the Inspector should go back to the parties advising them of the changed status and seek their views;
if there is no Direction on our web site the Inspector should ask the Local Planning Authority (via our case officer) to provide a copy and only go back to the parties if the status of the relevant polices has changed;
if, following iii, the Local Planning Authority say that no Direction has been issued (e.g. because they have failed to apply for one or because the Government Office has not responded to an application) the policy concerned should be treated as having expired and the parties informed.

However, Inspectors should normally only need to go back to the parties if the relevant policies are critical to the decision (e.g. they have specific objectives or they do more than simply reflect national policies) and/or the Inspector feels that the appellants may be prejudiced if they are not informed about the changed status of the policies and given a chance to comment.

7, As for weight, in the covering letters the Secretary of State has indicated that “following 27 September 2007 the extended [saved] policies should be read in context. Where policies were adopted some time a go, it is likely that material considerations, in particular the emergence of new national and regional policy and also new evidence, will be afforded considerable weight in decisions.” While not part of the policy, any reasoned justification or explanatory text, as well as any properly prepared supplementary planning guidance, relating to a saved policy may be material and attract weight.

8, Policies that have ceased to be part of the development plan under the provisions of Schedule 8 (and related reasoned justification/explanatory text/supplementary planning guidance) may nevertheless still be material. Where a policy is material the weight it attracts will be for the Inspector to decide depending, for example, on:

its relevance to the case;
whether it is felt to be out of date;
the Local Planning Authority’s reasons, if any, for not proposing to save;
the Government Office’s reasons, where given, why it was not saved;
how far it complies with the criteria set out in PPS12 paragraphs 5.11 or 5.15.

9, In making this judgment, Inspectors will have regard to the intention of the saved policy process and the Secretary of State’s views on saved policies as expressed in paragraph 7 above.

10, A number of Local Planning Authorities have challenged in the High Court Government Office decisions not to save policies. However, Inspectors will continue to treat such policies as unsaved until the outcome of the challenge is known.