It is a fundamental principle of planning law that the weight to be given to a material consideration, in the determination of a planning application or appeal, is a question of planning judgment – and so a matter for the decision maker. Against that, the question whether a factor is or is not a material consideration in the particular circumstances is ultimately a question of law – and so a matter for the court.
Where no statutory interference subsists, the question whether a factor is a material consideration will often depend on how relevant it is to the question of whether planning permission should be granted or refused. Again, this will be a question for the decision maker – but on this occasion subject to review by the court if the conclusion reached by him is one that no reasonable decision maker could have reached in the circumstances.
In R (on the application of W E Black Ltd) v St Albans City and District Council [2015] PLSCS 172, the claimant owned number 53 Victoria Street, St Albans (“Number 53”). It comprised a two-and-half storey former office block that the claimant was converting into 14 residential flats, in reliance upon the GPDO. The interested party owned number 55 Victoria Street (“Number 55”), which at the time had the benefit of planning permission for the demolition of a two-storey retail building, and the erection of a four-storey building providing office space and 11 residential flats.
Following the works of demolition, the interested party applied to the local planning authority (“LPA”) once more, on this occasion for planning permission for a revised scheme including 14 residential flats. The LPA granted planning permission, subject to conditions. The claimant applied to quash its decision to do so, contending principally that the LPA had erred by treating as a material consideration in the determination of the second planning application a factor that no reasonable LPA could have done. That factor was the decision by the claimant to convert Number 53 into flats, at a time when it was aware that there was an extant planning permission to erect a four-storey building on Number 55.
The court accepted the claimant’s arguments, and quashed the LPA’s decision to grant further planning permission. The factor in question did not provide a rational basis for assessing the acceptability of the impact of the development proposals on Number 53, and on the amenity of those who might occupy flats in the claimant’s converted building. The fact that the claimant could not reasonably complain about the development proposals was not material. Planning permission was not a private matter. It was a decision of a LPA in discharge of statutory obligations, the purpose of which was to serve the public interest.
John Martin is a planning law consultant
