The Court of Appeal in R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 130; [2002] 4 PLR 66 had to consider the legal duty upon a delegated planning officer, when faced with a material change of circumstance between the passing of the resolution to grant planning permission and the formal issue of the permission itself.
It accepted that the obligation placed upon a local planning authority (LPA) by section 70(2) of the Town and Country Planning Act 1990, in dealing with a planning application, to have regard to (inter alia) “any other material considerations” extended in the temporal sense up until the formal issue of the planning permission. The court went on to hold that, subject to a number of tests being satisfied, it was the duty of the delegated planning officer in such an instance not to issue the decision notice, and to refer the application back to the LPA’s planning committee.
Those tests may be summarised as follows. (1) Is the change of circumstance material in the sense that it is a factor that objectively has some weight in the decision-making process, whether or not determinative? (2) If so, did the delegated planning officer discover or anticipate the change of circumstance, or should he reasonably have done so? (3) If so, then he can only proceed to issue the decision notice if he is satisfied (a) that the planning committee is aware of the new factor, (b) that it has considered it with the planning application in mind, and (c) that on a reconsideration the planning committee would reach the same decision.
In R (on the application of Smech Properties Ltd) v Runnymede Borough Council (see PP 2015/68) a further ground of challenge was based upon the LPA’s emerging local plan core strategy. The claimant contended that, on the publication of the inspector’s report, the LPA had erred in law in not taking the planning application back to the committee.
The court rejected that ground also, holding that the inspector’s report was not a material consideration that would tip the balance in some way, or a material consideration in the sense that it required the LPA to take the planning application back to the committee. It would have made no difference, on the facts, to the decision reached.
John Martin is a planning law consultant
