Planning permission – Material consideration – Respondent council resolving to grant planning permission for residential development – Delay between resolution and formal grant of permission – Government announcing intention to revoke regional spatial strategies – Whether matter should have been referred back to respondents’ planning committee for reconsideration – Appeal dismissed
In March 2010, the respondent council resolved to approve an application by the interested party for planning permission for a residential development of up to 584 houses. The respondents noted that the scheme conflicted with a local plan policy against residential development in that area but gave greater weight to the regional spatial strategy (RSS), which aimed to secure a five-year supply of building land to meet the shortfall of housing in the region, and to emerging planning policy for Blackpool that favoured development in the area.
The respondents’ head of development was authorised to grant planning permission but did not formally do so until July 2010. Meanwhile, in May 2010, the secretary of state for communities and local government wrote to all local planning authorities (LPAs) informing them of the government’s intention to abolish RSSs as part of its move towards localism. The secretary of state’s subsequent purported revocation of all RSSs was quashed on the ground that it was unlawful and ineffective under the existing planning legislation: see R (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin); [2010] 46 EG 116 (CS). However, a further letter of November 2010, in which the government informed LPAs of its continued intention to revoke RSSs by new legislation and advised them that they should still have regard to the advice in the May letter in planning decisions, was held to be lawful: see [2011] EWHC 97 (Admin); [2011 PLSCS 45 and [2011] EWCA Civ 639; [2011] 34 EG 68.
The appellant sought judicial review of the grant of planning permission. She contended that the respondents’ head of development should have referred the planning application back to the planning committee in light of the May 2010 letter, which was a material consideration to be taken into account in their decision. Dismissing the claim, the judge held that the respondents’ decision was based on local considerations that would survive the abolition of RSSs and that, accordingly, the May 2010 letter was not material or its materiality was de minimis: see [2011] EWHC 591 (Admin) [2011] PLSCS 83. The appellant appealed.
Held: The appeal was dismissed.
The respondents had not failed to have regard to a material consideration within the meaning of section 70(2) of the Town and Country Planning Act 1990. The change of planning policy represented by the intention to abolish RSSs was not material on the facts of the case, in the sense of a factor that, when placed in the decision-maker’s scales, could have affected the balance one way or another: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2003] 1 P&CR 19; [2002] 4 PLR 66 considered. So long as the RSS continued to be on the statute book, an LPA would still have to pay regard to it. Although it was not safe to assume that there were no circumstances in which LPAs could ever give any weight to the proposed abolition of RSSs, they would be advised to give clear and cogent reasons why they gave weight to that factor in a particular case: Cala Homes [2011] EWHC 97 (Admin); [2011] PLSCS 45 and [2011] EWCA Civ 639; [2011] 34 EG 68 applied.
In the instant case, the judge had been entitled to find that the relevant aspects of the RSS were also contained in the local strategy that would survive the abolition of RSSs. The evidence for local housing requirements was well known to the respondents’ planning committee and local policy in that regard had informed the RSS rather than the other way around. To the extent that emerging planning policy was a relevant consideration, that policy was informed not just by the proposed abolition of RSSs, but also by the continued relevance of housing need and the evidence on which that need had been assessed. Since the respondents were content with the housing figures in the RSS, so far as they concerned the area for which they had responsibility, they were entitled to retain that housing target and have regard to it in their decision.
John Hunter (instructed by Glassbrooks Solicitors, of St Annes on Sea) appeared for the appellant; Paul Tucker QC (instructed by the legal department of Blackpool Council) appeared for the respondents; Roger Lancaster (instructed by HBJ Gateley Wareing LLP) appeared for the interested party.
Sally Dobson, barrister
