Town and country planning – Planning permission – Material consideration – Defendant local authority resolving to grant planning permission for redevelopment of school on new site – Claimant local resident applying for judicial review of decision – Whether defendants erring in law by failing to have regard to option of redeveloping school at alternative existing site as a material consideration – Application granted
The defendant local authority obtained funding from the Education Funding Authority (EFA) to redevelop a school at Uppermill in the central settlement of Saddleworth, near the north western edge of the Peak District National Park. The EFA undertook a feasibility study which looked at various options for the redevelopment, including relocation to nearby Diggle on the site of old, unoccupied pallet works. The study noted that the existing school buildings were in a poor state of repair and designated the pallet works site as the preferred option as it offered the best value for money. However, the EFA confirmed that to would also fund the redevelopment of the school on its existing site, if the defendants chose that option, even though it would be more expensive. The defendants’ accepted their planning officer’s recommendation to adopt the EFA’s preferred option of relocating the school to the pallet works site. The planning committee granted the necessary permissions and listed building consent.
The claimant was the chairman of a local residents’ action group which objected to the relocation of the school on the grounds that it would have a harmful effect on heritage assets and that the school could be satisfactorily redeveloped on its existing site. The claimant applied for judicial review of the decision to grant planning permission and listed building consent. He contended, amongst other things, that the option of redeveloping the school at the alternative existing site was a material consideration to which the defendants were obliged to have regard under section 70(2)(c) of the Town and Country Planning Act 1990; and their failure to do so amounted to an error of law.
Held: The application was granted.
(1) The question whether something was a material consideration was a matter of law. If a decision-maker wrongly took the view that a consideration was not relevant, and therefore had no regard to it, its decision could not stand. It was for the court, not the decision-maker, to decide whether the matter was one to which the decision-maker should have regard but it was not enough that, in the judge’s view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the matter was one of statutory construction: Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P & CR 343, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 and Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin) applied.
(2) The wording of section 70 of the 1990 Act made obligatory any consideration that was material. On the present state of the authorities, there were, even in the context of section 70, and despite its wording, three categories of considerations: (i) those that had to be taken into account, either because statute (not including section 70) or national or local policy so required, or because they were so obviously relevant on the facts that it would be irrational not to do so; (ii) those that might be taken into account, so that the authority would not err by doing so. They were not intrinsically irrelevant but did not fall within the first category, and the weight they should bear would be a matter of planning judgment, and might properly be nil; and (iii) considerations that were legally irrelevant, which might, in the normal way, taint a decision with illegality if taken into account, for example, a desire to benefit or punish a developer, or to benefit or punish objectors, or to favour one developer over another.
(3) In the present case, the court’s difficulty with the defendants’ decision was that the availability of the existing Uppermill site as an alternative to the pallet works site was treated in the main report as an irrelevant consideration falling into the third category; whereas it was at the very least a consideration falling within the second category. Furthermore, applying the test derived from the cases of GLC v Secretary of State for the Environment (1986) 52 P & CR 158 and R (on the application of Langley Park School) v Bromley London Borough Council (2010) 1 P & CR 10; [2009] PLSCS 246 to the facts of this case, the court would place it in the first category.
(4) The alternative site was obviously relevant. The EFA’s feasibility study had been based on non-planning considerations and the obtaining of value for money. Despite that, the study had not ruled out the existing site on financial grounds. The study had not included any consideration of harm to a heritage asset. The alternative site was not far-fetched or vague; it was a concrete and costed proposal, albeit one with perceived financial disadvantages. It was obviously rational and sensible for the members of the planning committee to weigh the educational, financial and construction advantages of the pallet works site against the harm done to heritage assets if that site was adopted. That had been done but it was equally rational and sensible, and indeed necessary as a matter of rationality, for the committee members to weigh the educational, financial and construction disadvantages of the Uppermill site against the benefit of avoiding substantial harm to the heritage assets at the pallet works site. That had not been done. The language of the main report had been imperative and not merely advisory. Planning committee members had been positively instructed to put the existing site out of their minds. Accordingly, the defendants had failed to comply with their obligation under section 70(2)(c). Moreover, it could not be said that it was highly likely, had it done so, that the outcome would necessarily have been the same, or substantially the same. Therefore, the resolution to grant planning permission and listed building consent would be quashed.
Robert McCracken QC (instructed by Irwin Mitchell) appeared for the claimant; David Manley QC (instructed by Oldham Council Legal Services) appeared for the defendants.
Eileen O’Grady, barrister
