Secretary of State making modification order in respect of planning permission – Developer entitled to claim compensation – Applicant council seeking to quash modification order – Whether inspector failed to consider financial impact of compensation payment upon applicant – Town and Country Planning Act 1990 section 100 – Application dismissed
In July 1993 the applicants, Alnwick District Council (the council), granted outline planning permission for development at a site at Willowburn Avenue, Alnwick. The permission covered a range of uses, including class A1 retail (food and non-food). The second respondent, Safeway, subsequently acquired the freehold of the site. In January 1996 the Government Office for the North East invited the council to consider revoking or modifying of the outline permission, on the ground that it was contrary to national and development plan policies. The Secretary of State consulted the council as to whether he should exercise his powers under section 100 of the Town and Country Planning Act 1990, to make an order to revoke or modify the permission. Following a public inquiry, the inspector concluded that “the council was grossly wrong… to grant permission when the clear evidence then, and now, is that the permission… would first, adversely effect the vitality or viability of Alnwick town centre; second, not accord with the actual need for retail use on the subject site; and thirdly, be contrary to national and local plan policies”, and that it was expedient to modify the 1993 permission by the deletion of A1 use.
In March 1998 the Secretary of State adopted the inspector’s conclusions and accordingly made the modification order. The council sought to quash the inspector’s decision, notably on the ground that the inspector failed to consider the financial impact upon the applicant of a compensation payment to the developer as a consequence of such an order being made. It was submitted that the financial impact was a material consideration, either as a matter of general principle, or in so far as it had land use consequences, as it would prevent the applicant providing the proposed new leisure facilities for the area.
Held: The application was dismissed.
In the same way that, in order to be a material consideration for the purposes of sections 70(2) and 54A of the 1990 Act, a consideration had to be a “planning” consideration, decisions under sections 97 and 100 of the Act were guided only by planning considerations. Any consideration that related to the use and development of land was capable of being a planning consideration: see Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281. Therefore, financial consequences were capable of amounting to a material consideration in that they related to the use and development of land. It followed, however, that in so far as financial consequences did not relate to the use and development of land, they were not capable of amounting to a material consideration. The financial consideration raised by the council had nothing to do with the development that was the subject of planning permission. The inspector and Secretary of State were correct to proceed on the basis that the financial impact of a compensation payment was not capable of being a material consideration, since it was not a land use planning matter.
John Hoggett QC and Vincent Fraser (instructed by James Chapman & Co, of Manchester) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; John Steel QC (instructed by Clifford Chance) appeared for the second respondent.
Sarah Addenbrooke, barrister