Town and Country Planning Act 1990, section 54A — What amounts to “material consideration” which may override duty to have regard to development plan — Whether issue affected by presumed compliance of plan with relevant DOE guidance — Whether application affecting designated “urban area” may be refused for lack of public transport facilities
The site in issue lay just within the boundary of an area designated as the “urban area” in the local development plan according to which, subject only to certain specific exceptions, applications for residential development in that area would “normally” be permitted. Aggrieved by a refusal of planning permission to build a small housing estate on the site, the applicants appealed to the Secretary of State. However, the appeal was dismissed on the basis of the inspector’s finding that the remoteness of the site, coupled with lack of public transport facilities, would result in failure to bring the development into the local urban community. According to the inspector, those factors amounted to a “material consideration” within the meaning of section 54A of the Town and Country Planning Act 1990 and, as such, warranted a departure from the duty otherwise imposed by that section to have regard to the development plan.
Before the court, the applicants challenged the last conclusion on the ground that the factors identified by the inspector could not be regarded as a material consideration. Those factors, it was argued, had already been taken fully into account in the very plan to which the inspector had to have regard. Since the plan had to give effect to national policies as expressed from time to time in guidance notes issued by the DOE, the positioning of the boundary line between the urban area and the countryside area (where the opposite policy applied) had necessarily been dictated, inter alia, by PPG 13 which urges planning authorities to “integrate” planning and regional transport policies with a view to minimising reliance on private transport.
Held The decision of the Secretary of State upheld.
1. The applicants’ argument, if correct, would preclude the authority from considering transport factors in any application affecting a site in the urban area, no matter how poorly served. Although a specific exception could have been made for such sites the lack of such a provision could not be seen as tying the authority’s hands in the manner contended for.
2. The matter was, in any event, put beyond doubt by the presence of the word “normally” in the relevant passage in the plan.
3. The court could not improve on the words of Cooke J in Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281: “Whether a particular [planning] consideration … is material in any given case will depend on the circumstances”.
Harry Wolton QC (instructed by Marron Dodds, of Leicester) appeared for the applicants; David Holgate (instructed by the Treasury Solicitor) appeared for the first respondents; the second respondents, Peterborough City Council, did not appear and were not represented.
