Raw materials

Material considerations have a key place in the planning system. John Pugh-Smith runs the rule over recent cases.

Along with the development plan, “material considerations” form the backbone of the planning system. It is essential to making any determination under the Planning Act and it has given rise to a substantial body of case law.

The issue of what constitutes a “material consideration” took a new turn when the issue of health policy came before Mr Justice Cranston in R (Copeland) v Tower Hamlets London Borough Council [2010] EWHC 1845 Admin. There, the claimant, Mr Copeland, applied for judicial review of the Council’s decision to grant planning permission for the change of use of premises from a grocery use to a hot food takeaway use.

The general vicinity of the premises was residential and in its immediate vicinity was a secondary school. The school had in place a healthy living programme. Mr Copeland, who lived opposite the premises opposed the application on the grounds that it was contrary to the healthy eating programme being promoted at the school. He relied on a planning policy of a different London local authority that restricted the development of takeaways in the vicinity of schools and Government statements on healthy eating.

The planning committee granted conditional planning permission for the change of use of the premises. However, the judge found that promoting social objectives could be a material consideration in the context of planning law and planning controls.

Further it was clear that the “human factor” could fall to be considered in exceptional cases as part of land use. Here, the planning officer had given a clear direction to the planning committee that points about the proximity of the premises to the school were not to be taken into account in considering the appropriateness of a grant of planning permission as they were not material considerations.

In the circumstances it was apparent that that erroneous advice could have influenced the planning committee in reaching its decision. Accordingly it was appropriate to declare that the Council had acted unlawfully by failing to have regard, as a material consideration, to the proximity of the school to the premises in granting planning permission for a change of use. If the committee had been properly directed they might have reached a different decision. Therefore, the permission would be quashed.

The Supreme Court also considered the issue of material considerations in the context of compulsory purchase powers under section 226(1A) of the 1990 Act in the case of R (Sainsburys Supermarkets Limited) v Wolverhampton City Council & Tesco Stores Limited [2010] UKSC 20.

Sainsburys owned the majority share of a development site and Tesco controlled the rest of it. Both operators wished to acquire and develop the whole of the site. Tesco also controlled a second site 850 metres away which it proposed to redevelop in a manner desired by the Council. However, it was acknowledged by the Council that the redevelopment of that site was unlikely to take place unless Tesco’s scheme was selected in relation to the main site; that would enable the Council to “cross-subsidise” the development of the second site, such development not being, on its own, financially viable for Tesco.

The Council considered that Tesco’s scheme for the main site offered a decisive advantage over Sainsburys’ scheme, as it would enable the development of the second site to take place and thus make a significantly greater contribution to the “well-being” of the area. The Council resolved that its compulsory purchase powers should in principle be exercised to facilitate Tesco’s developments on both sites.

The issue for decision was whether, on a proper construction of section 226(1A), a local authority was entitled to take into account a commitment by the developer of a site part of which was to be the subject of a compulsory purchase order to secure, by way of cross-subsidy, the development, redevelopment or improvement of another unconnected site and so achieve further well-being benefits for the area.

A majority of the Supreme Court found in favour of Sainsburys, that the opportunity for redevelopment of the second site was not a lawful consideration for the purposes of a decision whether to make a compulsory purchase order in relation to the main site.

Noting that the principles which arose from decisions in the planning context also applied to compulsory acquisition for development purposes, subject to the proviso that, because of the serious invasion of proprietary rights involved in compulsory acquisition, a strict approach to the application of the principles was required and attention was focused on the principle, derived from the planning context, that off-site benefits which were related to or connected with the development would be material although there had to be a real, rather than a fanciful or remote, connection between the off-site benefits and the development for which the compulsory acquisition was made.

In this case, there was only a connection in the sense that either the Council was being tempted to facilitate one development because it wanted another development or Tesco was being tempted to undertake an uncommercial development in order to obtain the development that it wanted. Accordingly, the claimed financial connection between the two sites was not such as to amount to a relevant matter.

The other essential element in making any determination under the Planning Act 1990 is the role of the development plan. Indeed the wording of section 38(6) of the Planning and Compulsory Purchase Act 2004 still makes the development plan, as a matter of law though not of politics, the “starting point” for decision-making, whether it be a re-instated Regional Strategy (even if the Minister’s November revocation statement still attempts to trump it), or, a recently pre-RS revocation adopted Core Strategy.

As the Court of Appeal has very recently reminded, in Calderdale Metropolitan Borough Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 1268, where, for example, a development plan contains an unqualified prohibition of residential development on unallocated greenfield land, that section 38(6) raises a presumption in favour of that prohibition which can only be displaced by material considerations that indicate otherwise.

There, an appeal inspector had allowed an appeal against a refusal by Calderdale to grant planning permission for the construction of 21 dwellings on a greenfield site. The development plan contained policies that prohibited development on unallocated greenfield land and the provision of affordable housing. The inspector referred to the fact that he did not believe that Calderdale had sufficient land to deliver affordable housing over a 15-year period.

Quashing the decision at first instance, and, dismissing the Secretary of State’s appeal, it was held that where a development plan contained an unqualified prohibition of residential development on unallocated greenfield land, section 38(6) raised a presumption in favour of that prohibition, which could only be displaced by material considerations that indicated otherwise. As the inspector had misstated the presumptive test that he had to apply, and, when his decision was looked as a whole it could not be properly said that misstatement could be rectified as there were no clear reasons stated as to why he regarded that there were material considerations that outweighed the presumption in favour of refusal.

Finally, in Cala (No.2) – R (Cala Homes (South) Limited) v Secretary of State for Communities and Local Government & Winchester City Council [2011] EWHC 97 (Admin) – Mr Justice Lindblom had, primarily, to consider whether the statement and letters of 10 November from the Secretary of State and the Chief Planner were an immaterial consideration, being a transparent attempt to thwart the application of the law as it stands and the judgment of the court in the previous claim for judicial review (Cala No.1).

Having reviewed the relevant law, including the status of ministerial statements the judge determined that the Secretary of State had not enjoined local planning authorities to assume that RSS had already been revoked, or to ignore their provisions in so far as they bore on the particular decision in hand.

Rather, what he had done was to advise authorities, when making decisions to which such regional policy is relevant, to take into account the fact that the Government intended to promote, through legislation, a reform of the existing planning system in England, the effect of which would be to remove RSS as an element of the development plan. “That Regional Strategies are at present central in the planning system does not render irrelevant and unlawful, for the purposes of a planning decision, the Government’s intention to reform the system by removing them from it”.

John Pugh-Smith is a barrister at 39 Essex Street (www.39essex.com).