It has long been accepted by the court that the planning history of a site is capable of being a material consideration in the determination of a later planning application or appeal. (One frequently quoted reason for this is the desirability of ensuring consistency in planning decision making.) This generally obliges the decision maker to have regard to previous grants and refusals of planning permission, but the judgment in Pemberton International Ltd v London Borough of Lambeth [2014] EWHC 1998 (Admin) demonstrates that rather more may be involved.
In that case, the local planning authority (“LPA”) granted planning permission for a material change of use of premises to use as a restaurant and café, and varied a condition attached to an earlier planning permission that had also permitted such a change of use. Prior to its variation, the condition provided that there should be no outdoor seating without the prior written approval of the LPA. (Concerns had been expressed about the impact of noise on neighbouring residential occupiers.) Post variation, the condition permitted outdoor seating limited to thirty covers and only during specified hours. (During the intervening period, however, a temporary planning permission had been granted allowing restricted outdoor seating, to enable the LPA to monitor the effect on residential amenity.)
The claimant applied to quash the later planning permission. One of its grounds was that the LPA had failed to have regard to a material consideration, namely complaints made about breaches of condition during the period of the temporary planning permission. Evidence was submitted to show that complaints about the operation of the restaurant and café had been made to the LPA’s planning officers over a number of months by residential occupiers, focusing on the outdoor seating arrangements.
The court allowed the claim, and quashed the later planning permission. It held that the planning officer to whom the LPA had delegated the role of determining the planning application had failed to have regard to a material consideration, namely the complaints. (The evidence demonstrated that he was unaware of them.) The complaints formed part of the planning history of the site. They were material considerations in the circumstances of this case, and they could not be described as insignificant or unimportant in the sense that they were unlikely to have any impact on the decision that the planning officer had to make.
John Martin
