In the determination of a planning application, the decision-maker is statutorily bound to have regard inter alia to “any other material considerations”.
The frequently cited decision in Stringer v Minister for Housing and Local Government [1970] 1 WLR 1281 establishes that such considerations must be of a planning nature. The court then went on to hold that any consideration that relates to “the use and development of land” is capable of being a planning consideration; however, whether it is material in any given case will depend upon the circumstances. Finally, the court acknowledged that the duty of the decision maker to act in the public interest did not preclude him from considering the effects of a proposed development on a particular use of land by a particular occupier in the vicinity. In other words, such effects might be a material planning consideration.
In R (on the application of Hayden) v Erewash District Council [2013] EWHC 3527 (Admin) the claimant sought to quash the decision of the local planning authority (“LPA”) to grant planning permission to his neighbour for the erection of a two-storey side extension. Both properties were sited above a coal seam in a former coal mining area, and the claimant’s primary concern was that the installation of foundations robust enough to support the new structure would potentially cause structural damage to his own house. The LPA initially took the view that this was a matter that would be addressed through the Building Regulations 2010 and the Party Wall Act 1996, and it should not influence the outcome of the planning application. The claimant’s main ground of challenge, accordingly, was that the LPA had failed to have regard to a material planning consideration, namely ground stability.
The court dismissed the application, holding that there had been no error of law on the part of the LPA. It had conceded that the risk of subsidence is capable of being a material planning consideration. However, it was settled law that the existence of regulatory regimes parallel to the planning regime, while not a determinative factor in considering planning merits, was also capable of being a material planning consideration. In the present case, the LPA had properly concluded that the risk of subsidence, albeit a planning consideration, was not material since it would be addressed through the two regulatory regimes referred to.
John Martin