Third party fears as a material consideration
The courts have recognised that the fear of local residents is, in principle, capable of amounting to a material consideration in the determination of a planning application.
Where it is found to be so, the decision maker must clearly take it into account when reaching a decision. Indeed, the Court of Appeal held in Newport Borough Council v Secretary of State for Wales [1998] JPL 377 that, even where residents’ fears are shown to be unjustified, they may nevertheless amount to a material consideration (in such a case, the decision maker would no doubt accord less weight to them).
Many of the relevant cases concern public fear as to health or safety. Examples include applications for planning permission to develop a chemical waste treatment plant (as in Newport), to construct a bail and probation hostel and to erect a radio telephone base station tower in the vicinity of residential property. However, a recent case involved fear of financial damage to a business.
The courts have recognised that the fear of local residents is, in principle, capable of amounting to a material consideration in the determination of a planning application.
Where it is found to be so, the decision maker must clearly take it into account when reaching a decision. Indeed, the Court of Appeal held in Newport Borough Council v Secretary of State for Wales [1998] JPL 377 that, even where residents’ fears are shown to be unjustified, they may nevertheless amount to a material consideration (in such a case, the decision maker would no doubt accord less weight to them).
Many of the relevant cases concern public fear as to health or safety. Examples include applications for planning permission to develop a chemical waste treatment plant (as in Newport), to construct a bail and probation hostel and to erect a radio telephone base station tower in the vicinity of residential property. However, a recent case involved fear of financial damage to a business.
In R (on the application of Palmer) v Herefordshire Council [2015] EWHC 2688 (Admin), the claimant – who operated a holiday lettings business – applied unsuccessfully to quash the grant of planning permission by the local planning authority (“LPA”) for four poultry broiler units intended to accommodate 45,000 boiler chickens at any one time on land approximately 300 metres away from the site of his business. One of his grounds alleged a failure on the part of the LPA to acknowledge, in the committee report, his fear that the proposed development would ruin, rather than merely affect, his business. He contended that such fear was capable of being a material planning consideration.
The court – while accepting that his fear was capable of being a material consideration – rejected that ground, concluding that the officers and members were well aware of the extent of the effect that the claimant contended the development might have on his business. He had made a great many submissions to emphasise his objections, both personally and through his specialist consultants.
The judge pointed out that it was the function of officers and members to balance the objections made against the merits of a planning application, and in so doing weigh up the strength of the objections and decide whether they regarded the concerns expressed to be justified. In this case they did so, and must be taken to have preferred the argument that the effect on the claimant’s business would not be as significant as alleged.
John Martin is a planning law consultant
