Section 70(2) of the Town and Country Planning Act 1990 obliges a local planning authority, in determining a planning application, to have regard to the development plan, so far as material to the application, any local finance considerations, so far as material to the application, and any other material considerations. (The Act separately imposes the same requirement upon the Secretary of State, and therefore on his inspector.)
In the absence of any statutory definition of the term “material consideration”, the court’s early view that a material consideration must in some way relate to the use and development of land has widened. That said, the court has always recognised that government policies may be material considerations. The error is to assume that it is necessary only to look to the NPPF and surviving circulars and planning policy statements in this respect.
In Oxford Diocesan Board of Finance v Secretary of State for Communities and Local Government [2013] EWHC 802 (Admin), the claimant sought to quash the decision of the Secretary of State to refuse planning permission for residential development. That decision was made following an inquiry, and the submission of his inspector’s report recommending refusal. Shortly after the close of the inquiry, and before the Secretary of State made his decision, the government issued a ministerial statement entitled “Planning for Growth”. This emphasised the key role of the planning system in rebuilding the country’s economy by ensuring that the sustainable development needed to support such growth is able to proceed as easily as possible. It also made it clear that the Secretary of State would take the principles set out into account when determining planning applications that came before him for determination.
The claimant contended that the Secretary of State had failed to take this ministerial statement into account when reaching his decision. The court accepted this argument, and allowed the claim. While recognising that a failure to refer to a particular document does not necessarily mean that the decision-maker has failed to have regard to it, on the balance of probabilities in this case that is what had happened. A mere ministerial statement might be low in the hierarchy compared with national planning policies, but this one had potential relevance to housing development and it was a material consideration.
John Martin
