Planning permission – Defendant council resolving to grant permission for residential development – Delay before formal grant of permission by head of development – Government announcing intention to revoke regional spatial strategies – Whether revocation a material consideration – Whether head of development should have referred matter back to defendants for reconsideration – Claim dismissed
In March 2010, the defendant council resolved to approve an application for planning permission for a residential development of up to 584 houses, with associated parking, shops and a village green. The defendants noted that the scheme conflicted with a local plan policy against residential development in that area but gave greater weight to the regional spatial strategy (RSS), which aimed to secure a five-year supply of building land to meet the shortfall of housing in the region, and to emerging planning policy for Blackpool that favoured development in the area.
The defendants’ head of development was authorised to grant planning permission but did not formally do so until July 2010. Meanwhile, in May 2010, the secretary of state for communities and local government wrote to local planning authorities (LPAs) informing them of the government’s intention to abolish all RSSs as part of its move towards localism. The defendants declined the claimant’s request that they reconsider their decision to grant planning permission in the light of that stated intention.
The court held that the government’s revocation of RSSs, in the purported exercise of statutory powers, unlawful and ineffective under the planning legislation: see R (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin); [2010] 46 EG 116 (CS). However, a further letter of November 2010, in which the government informed LPAs of its continued intention to revoke RSSs by new legislation and advised them that they should continue to have regard to the May letter in planning decisions, was held to be lawful: see [2011] EWHC 97 (Admin); [2011] PLSCS 45.
The claimant applied for permission to seek judicial review of the grant of planning permission. She contended that the government’s intention to revoke RSSs, as contained in the May 2010 letter, was a relevant consideration and should have been considered before the defendants’ decision was issued. A rolled-up hearing was held to determine both the question of permission and the substantive issues.
Held: The claim was dismissed.
When considering whether a matter was a material consideration to which an LPA was required to have regard under section 70(2) of the Town and Country Planning Act 1990, the court should take an objective view of materiality having regard to all the facts and circumstances. A matter that was theoretically relevant to a planning decision could be excluded as being insufficiently material on a de minimis approach; that was not to confuse the issues of materiality and weight but merely to recognise the true scope of materiality. Regard should be had to practical effect in determining materiality, such that LPAs were not obliged to take account of considerations that, objectively viewed, would have no practical effect on the decision as to land use. Where the planning committee of an LPA had not considered a particular consideration, but that consideration was known to the officer responsible at the time permission was granted, the court would not hold that there had been a failure to have regard to a material consideration simply because the officer did not refer the matter back to the committee for decision: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2003] 4 PLR 66 applied. Whether the LPA had had regard to the consideration was to be viewed overall.
Although LPAs were not obliged to take legislative intent into account, it was open to them, and it would often be wise, when making decisions that would affect the distant future, to take into account those matters that might reasonably be supposed to alter the planning landscape in the intermediate future. The government’s legislative intent was to provide for local decision-making to be made closer to the communities affected by those decisions. Local requirements were to be given greater weight and were not to be overborne by regional considerations that did not address local needs. If regard to RSSs were removed, the need to consider local requirements would still remain and material that had underpinned the formation of RSSs could remain relevant to a particular authority. The considerations that had caused the defendants to reach their decision in the instant case were locally driven. The defendants had not referred to a particular feature of the regional strategy that was not also true of the local approach that was intended to survive it. In any event, under the law as it stood at the time, the defendants had been bound to apply the RSS and the legislative intention to abolish it could at most have affected the weight accorded to it. There were no grounds for supposing that the defendants would or might have reached any other decision if asked to reconsider. Viewed objectively, the proposed revocation of RSSs would not have been a material factor or would have been de minimis or would not have made any practical difference to the defendants’ decision. The head of development had been entitled to conclude that there was no need to refer the matter for formal reconsideration by the planning committee.
Accordingly, permission for judicial review would be refused because no effective relief could be granted and the claim would have failed on its merits.
John Hunter (instructed by Glassbrooks Solicitors) appeared for the claimant; Paul Tucker QC (instructed by the legal department of Blackpool Council) appeared for the defendants; Roger Lancaster (instructed by HBJ Gateley Wareing LLP) appeared for the interested party.
Sally Dobson, barrister
