Put simply, in the determination of planning applications and appeals regard must be had to all material considerations. For any consideration to be material, it must be a planning consideration and any consideration that relates to the use and development of land is capable of being a planning consideration. (In the latter respect, see Stringer v Minister of Housing and Local Government [1971] 1 All ER 65.) It follows that regard must not be had to immaterial considerations.
In Cheesecake Shop Ltd (aka Masuka The Cheesecake Shop (UK) Ltd) v Secretary of State for Communities and Local Government [2009] EWHC 1748 (Admin); [2009] NPC 98, the claimant owned premises situated in an area of Nottingham, the regeneration of which had long been promoted in the local plan. Furthermore, the local authority had resolved to grant outline planning permission for a large comprehensive mixed-use redevelopment on land within the area, including the site of the claimant’s premises.
The claimant applied to the authority for planning permission to replace part of its premises with a two-storey extension. This was refused on the single ground that the development would prejudice the comprehensive scheme and therefore conflict with the local plan. An inspector upheld that refusal on appeal for a similar reason. The claimant sought to challenge the inspector’s decision by applying to the court, under section 288 of the Town and Country Planning Act 1990, on a number of grounds. The challenge was successful but the specific ground of challenge on which this note focuses today failed.
The inspector’s detailed conclusions were that: (i) the claimant’s proposals would enhance the value of its premises; (ii) those premises would have to be acquired for the comprehensive scheme; (iii) following the grant of planning permission the cost of acquisition would be greater; (iv) this would increase the development costs of the scheme; and (v) that would be prejudicial to the scheme’s implementation. As its first ground of challenge, the claimant argued that the inspector’s decision should be quashed because she had taken into account an immaterial consideration. More particularly, she should have ignored the fact that the value of its premises would be increased if planning permission were granted.
The court referred to comments by Richards J in Alnwick District Council v Secretary of State for the Environment, Transport and the Regions [1999] 4 PLR 43 in support of the proposition that the financial consequences of a planning decision are capable of amounting to material considerations in so far as they relate to the use and development of land and provided that they are not too remote. It held that the inspector was entitled to conclude that the additional costs did have land use consequences that were not too remote in the context of the case. This was, however, subject to the existence of evidence justifying the conclusion that an increase in cost to the comprehensive scheme was prejudicial to it and was consequent upon the grant of planning permission to the claimant.
John Martin is a freelance writer
