It has been made clear by the courts on innumerable occasions that whether a factor constitutes a material planning consideration is a question of law. If it is, then the weight to be given to it is a question of planning judgment. Matters of planning judgment are within the exclusive province of the local planning authority or the secretary of sate, subject to review only on grounds of irrationality.
In Searle v Secretary of State for Communities and Local Government [2012] EWHC 2269 (Admin) the claimants, who were Romany gypsies, sought unsuccessfully to challenge the decision of the secretary of state (SOS) to uphold an enforcement notice. This had required them, inter alia, to discontinue the use of land in the South Downs National Park for stationing two mobile homes and one caravan for human habitation. Their appeal was on the sole ground that planning permission ought to be granted.
In the proceedings, their principal ground of challenge was that the SOS had had regard to an immaterial consideration, namely his intention to revoke and replace Circular 01/2006: Planning for Gypsy and Traveller Caravan Sites because he considered it to be flawed. As a consequence, he had given less weight to Circular 01/2006. Finally, he had failed to give intelligible, proper and adequate reasons for his decision to give it less weight.
The court rejected the claimants’ arguments, stating that it was indisputable since the decision of the Court of Appeal in R (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 639 that a prospective change to planning policy was capable of being a material consideration. A Circular, for instance, did not have to be withdrawn before it had less weight given to it. Furthermore, the decision maker does not have to identify the particular flaws in it to reach that planning judgment, nor does he have to identify what will replace it. He is entitled to say that he will give it less weight.
The judge stressed that such a judgment was a value judgment, which might, in the end, be largely a matter of impression. If decision makers were expected to give, as it were, marks out of 10 to every factor that they had taken into account, practical decision making would become impossible.
John Martin is a freelance writer.
