A considered view

A recent High Court case looked at the threshold for what should be considered a lawful decision in a planning committee, and the effect of ambiguous legal advice to committee members. John Bosworth analyses the ruling.

In the recent case of Bibb v Bristol City Council [2011] EWHC 3057 (Admin) the High Court found in favour of the local authority in relation to planning permission it granted for a Tesco Express supermarket in the Stokes Croft area of Bristol. Permission had been granted for a change of use of the premises from a comedy club to A1 retail use in November 2009. In December 2010 the planning committee considered a further planning application for the installation of chiller and freezer units in the rear service yard.

It was argued that the installation of the chiller and freezer units amounted to a 10% extension of the shop floor space and the additional impact of the increase in floor space was a material consideration. Counsel argued that the incremental impact of servicing a shop with the extra floor space was a material consideration which was ignored.

During the committee debate the legal adviser to the council had said that "servicing can be a material consideration but it is for you, the committee, to determine if in this particular case you believe it to be a material consideration - that's the first thing. And the second thing that you have to consider is how much weight you are going to attach to that issue. That is a matter for you." Judge Ousely found that this advice was lawful, admitting, however, that "the legal adviser used an unhappy formulation". The legality of this advice exposes the differing approaches to materiality in two leading cases namely Tesco Stores Limited v SS for the Environment [1995] 1 WLR 759 and Bolton MBC v SS for the Environment [1979] (61) P & CR 343.

In Tesco Hoffman LJ drew the sharp distinction between the question of law as to whether something is a material consideration and the question of the weight to be given to it. If Tesco were followed the incremental impact would be a material consideration and it was for the councillors to decide how much weight to afford it. Omitting servicing as a material consideration would be unlawful.

In Bolton Glidewell LJ permitted a category of lesser or insignificant considerations which it is not unlawful to take into account; the omission of which does not invalidate the decision. If Bolton were to be applied the omission of servicing would be unlawful, but not enough to quash the decision. Although the judge "was far from clear how consistent the decisions in Tesco and in Bolton are with each other", he found that the advice given was in keeping with the Bolton decision.

The judge went on to consider whether the incremental impact of servicing had been considered and found that it had. None of the reports had considered the issue, but it was concluded that the short discussion between councillors and officers that took place at the meeting was sufficient to show that "they did treat incremental impact as relevant in the sense of being something worth considering." This was found to be the case despite advice given by the planning officer showing a "degree of confusion between materiality in law and materiality as having some significance in weight."

This decision demonstrates the low threshold for what can be considered a lawful decision in planning committees. It also shows the benefit of doubt afforded to council's committees where ambiguous legal advice is provided to the decision makers.

John Bosworth is a partner at Ashfords. He can be contacted on 01392 333842 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..