Town and country planning – Planning permission – Material consideration – Defendant council granting outline planning permission for housing development – Claimant applying to quash decision to approve reserved matters including layout of housing development – Whether defendant erring in failing to take account of representations by claimant and acoustic engineer’s report casting doubt on possibility of scheme to mitigate noise emitted by claimant’s factory to acceptable levels – Application granted
The defendant council granted outline planning permission for a development of 321 houses on a site at Ledbury. The claimant was the owner of a cheese making factory adjacent to the site. The interested party developer was now the owner of the development site, having bought it with the benefit of the outline planning permission. The claimant sought an order quashing the decision of the defendant, acting by officers under a delegated authority, to approve reserved matters including the layout of the housing development in relation to the outline planning permission.
The sole ground of challenge was that the defendant failed to take into account a material consideration in that it did not take any account of representations made by the claimant, including a report by acoustic engineers on its behalf, which cast doubt on a conclusion previously reached that it would in principle be possible to produce a scheme for mitigation of noise emitted by the claimant’s factory such that it would be reduced to acceptable levels at houses built to the proposed layout.
The defendant and the interested party took the view that failure to take the report into account was not an error of law because the outline permission was in any event subject to a condition that before any development the defendant first had to approve a scheme of noise mitigation for outdoor living areas, bedrooms and living rooms for the houses to be built which would include details of proposed ameliorative measures to mitigate against noise from operations within the nearby industrial estate, including the claimant’s cheese factory.
The representations on noise issues were not material considerations at the point of approving the layout and no error was committed by ignoring them.
Held: The application was granted.
(1). The interaction of layout with satisfaction of the noise condition was plainly such that the defendant was entitled to have regard to it in considering the reserved matters application. It was evident from the consultation, the officers’ report and the minutes of the meeting that it had done so, and approached the matter on the basis it required to be satisfied that satisfaction of the noise condition would not be rendered impossible.
The advice given to members of the planning committee was expressly on the basis that, having regard to the measures the developer had proposed, planning officers and the environmental health officer (EHO) were satisfied that the condition was capable of discharge without changing the layout, and the delegated authority given to the officers was plainly premised on that advice.
In that context, further information coming to light that cast significant doubt on the validity of that advice amounted to a material consideration. It would, adopting the test set out in R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66, have been bound to tip the balance of consideration to some extent, if for instance members at the meeting had been told that the acceptability of the revised proposals depended on the developers experts having apparently watered down the standards applied by excluding a tonal penalty on a basis that now appeared open to challenge it was not realistic to say that would not have been considered relevant.
(2) Such information would not be an entirely new material consideration, arising for the first time after the grant of delegated authority, but best considered as material bearing on a matter already taken into account.
In the present context, the delegated authority itself conferred on officers a degree of power to consider for themselves new relevant information bearing on the exercise of the power they had been given such that, depending on the terms of the authority conferred, they might properly take a view as to whether in light of such information they should proceed to make a decision or refer the matter back to the members.
If they did so, the new information would have been considered by the planning authority, at the level of the officers acting under delegated powers, before the decision was taken and its duty was satisfied.
(3) It could not be said that responsible officers who had advised planning committee members that they and the EHO were satisfied the noise condition was capable of discharge would inevitably have proceeded to a decision on considering new information, apparently supported by expert advice, casting doubt on what members had been told, without referring that information to the EHO or committee members or both. It followed that there had been an error of law.
The error might be considered either as a failure by the planning authority to consider, either at the level of members or officers, a material factor in the form of the information provided, or as a failure by officers properly to exercise the delegated power they had been given by evaluating and coming to a conclusion on that information. In either case, the decision had to be quashed and remitted to the defendant for redetermination.
Jenny Wigley (instructed by Burgess Salmon LLP) appeared for the claimant; Hugh Richards (instructed by Herefordshire Council) appeared for the defendant; Peter Goatley (instructed by Shakespeare Martineau LLP) appeared for the interested party.
Eileen O’Grady, barrister
View the full transcript: R (on the application of Ornua Ingredients Ltd) v Herefordshire Council
