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Material considerations
Change in ownership
R (On the application of Horne & Meredith Properties Ltd) v Bridgnorth District Council
[2005] EWHC 2251 (Admin)
The change in ownership of a competing supermarket store from Somerfield to Sainsburys was a material consideration which required a reconsideration of the planning application. The application for planning permission had been supported by a retail assessment that sought to show both a qualitative and quantitative need for the proposed development. The Court held that it was inescapable that the assessment might change when a significantly stronger competitor, as Sainsbury's was, occupied the Somerfield floorspace. The significance of the change could not be dismissed as immaterial. The effect of the change was material in that it had some weight in the decision making process, even if it might not be determinative. His Honour Judge Mole QC sitting as a High Court Judge:"Average floorspace or benchmark figures were used in the quantitative assessment undertaken by DPP to demonstrate that a substantial proportion of the existing turnover of the existing convenience shopping floorspace, and particularly Somerfield's floorspace, might be considered as creating "head room" within which a major part of the turnover of a new Tesco could be accommodated without any harm to the vitality and viability of the town centre. The necessary underlying assumption was that Somerfield was not as strong a competitor as Tesco and would be forced to yield up a substantial part of its existing turnover. This reasoning was the justification for a very significant proportion of the notional turnover which it was considered would be available to Tesco in 2006 when that store opened. It seems to me that it was inescapable that the assessment might change when a significantly stronger competitor occupied the Somerfield floorspace. The average floorspace turnover figures show that whether or not Sainsbury is quite as strong a competitor as Tesco, they are both in the same league. They both turned-over, on average, approaching double the amount from their convenience floorspace that Somerfield did. Applying the Tesco floorspace figure to the floorspace occupied by Sainsbury's, as the Turley analysis did, might indeed overstate the effect of the change to a degree but not in my judgment to such a degree that the significance of the change could be dismissed as immaterial. To borrow the words of Parker LJ in Kides, the effect of the change is material in that it has some weight in the decision making process, although plainly it may not be determinative."
Change of mind after elections
R (on the application of Saunders) v Tendring District Council and another
[2003] EWHC 2977 (Admin)
Facts: A developer applied to the council for full planning permission to construct 77 dwellings on a brownfield site that adjoined a chemical refinery. The Councils planning committee, having made site visits and considered the reservations expressed by the Health and Safety Executive, refused to grant planning permission. The planning committee subsequently set out its objections, including one on the grounds of public safety, in a detailed statement. The developer appealed to the Secretary of State. Pending determination of the appeal, the planning committee was re-constituted following a local government election and in that new form re-considered the planning application and granted planning permission.
The appellant, a local resident, sought judicial review. He contended that the council had (a) failed to explain their change of stance (b) failed to take into account a material consideration, namely the concerns expressed in the earlier statement of objections and (c) undertaken much of the decision making process in private sessions.
Decision: The application was allowed and the grant of planning permission was quashed. Sullivan J held that the decision was seriously flawed for the reasons argued.
Comment: It is open to a local planning authority to have a change of heart, in relation to a subsequent planning application, but it is still bound to have regard to all material considerations. The planning history of the site will always be such a consideration and the earlier refusal of planning permission together with the reasons for refusal will form part of that planning history. Furthermore, in departing from an earlier stance it will always be incumbent upon the authority to give reasons for doing so.
Comparative assessment of competing applications
R (On the Application of Chelmsford Car & Commercial Ltd) v Chelmsford Borough Council
[2005] EWHC 1705 (Admin)
In this case there were two applications for planning permission before a local authority. Both sites were competing for the same very limited and highly localised need. The Court held that the local authority was under an obligation to carry out a comparative assessment of the planning merits of the two sites.
Both developers had applied for planning permission to erect 12 affordable dwellings. There was a proven local need for only 12 affordable dwellings. The local plan set out the criteria for consideration enabling the local authority to grant planning permission for social housing beyond the defined settlement boundary of villages in exceptional circumstances.
The local authority granted planning permission to one of the sites and refused the other application. The Court held that since the proven need was limited and highly localised, and the sites were on opposite sides of the same road, a comparison between the sites would have been a material consideration.
The local authority had made a comparison in relation to one criterion on the local plan but not in respect of other criteria. This was held to have been unreasonable and unfair and that it was inconsistent and unrealistic for the local authority to contend that there was no competing sites issue.
Conservation area
Proposals enhancing conservation area
R (on the application of Mount Cook Land Limited) v
Westminster City Council
[2003] EWCA Civ 1346
Facts: The tenant, who held the subject premises under a 999-year lease, had been granted planning permission to carry out external alterations to the exterior of the premises, including works to provide new shop fronts and canopies at ground floor level. The premises were in a conservation area. The landlord, who had objected to the grant of planning permission, unsuccessfully sought judicial review of the Council's decision to grant planning permission. The landlord then appealed to the Court of Appeal, contending principally that the Council had failed to have proper regard to the landlord's argument that the development would jeopardise the landlords own longstanding proposals for the improvement of the area to the rear of the premises. In other words, the tenant's proposals would be harmful in a planning sense by frustrating a more favourable solution for the area.
Decision: The Court of Appeal dismissed the appeal. The fact that, considered on their own, the tenant's proposals were not harmful in a planning sense and would enhance the conservation area was more than sufficient to justify the grant of planning permission. Where proposals would amount to a preservation or enhancement of a conservation area, only in exceptional circumstances would it be relevant for the decision maker to consider alternative proposals that were not yet the subject of a planning application. Therefore, the landlords alternative proposals did not constitute material considerations. Even if they did, they were of such negligible weight that the Council could not reasonably have taken notice of them.
Development plan policy
Misunderstood by inspector
Wycombe District Council v (1) First Secretary of State (2) Bellway Homes (North London) Ltd
[2005] EWHC 120 (Admin)
The Court held that where there had been a misunderstanding by the inspector as to the content of the development plan policy, the fact that he had considered the policy in detail could not alter the fact that he had failed to apply section 54A by giving the policy a reduced weight. The Court held that as a matter of principle where an error of law had occurred amounting to a failure to apply section 54A the decision should be regarded as fundamentally flawed. "28. I reject the submission that the court can be sure that, had the Inspector applied section 54A by reference to the full content of the policy plan, he would have come to the same conclusion. I am unable to do so because it is clear that the conclusions to which the Inspector did come are firmly based on his attribution of a reduced status to Appendix 1. The court cannot ignore this step in the Inspector's reasoning because it is at the heart of the process which led to his conclusion. To accept the defendant's submission would be to guess what he might have concluded had he applied the correct test. Further, it would inevitably involve the court in reaching its own planning judgment by applying the balancing exercise under section 54A in order to fill the void created by the Inspector's failure to do so.
29. Further, I am satisfied that for the court to accept the submissions of the first defendant would be to deprive the council of having a decision from the body authorised by parliament to give it, on an important issue as to whether its policy requirements were met by this development and, if not, whether "material considerations indicated" that nevertheless the development was to be permitted.
30. Yet further, I am satisfied that the LPA should not be left in the position where this decision stands, when it will inevitably be relied upon in the future by other applicants, and where its true effect will be incapable of discernment. Put another way, as a matter of principle, where an error of law has occurred amounting to a failure to apply section 54A, it should, in my judgment, be regarded as fundamentally flawed.
Different inspector - different view
J S Bloor (Sudbury) Limited v First Secretary of State
[2003] EWHC 1898 (Admin)
Facts
The developer had the benefit of outline planning permission for the construction of five detached bungalows on its site. At the approval of reserved matters stage, it submitted details of five two-storey houses with the result that the Council treated the application as an application for full planning permission. The Council subsequently refused to grant planning permission. The developer appealed to the Secretary of State. His inspector refused to grant planning permission. Having found that the principle of five dwellings on the site had been established, the inspector nevertheless concluded that the development would be contrary to development plan policy, and would cause unacceptable harm to the character and appearance of the area by reason of the scale and form of the dwellings. Later, the developer applied afresh for outline planning permission for five detached dwellings and associate garages. This was refused by the Council and again on appeal. On this occasion, the inspector found that the development of only five dwellings would be contrary to clear government policy regarding housing density and efficient use of land. While he noted that the earlier appeal decision had accepted the principle of five dwellings on the site, he considered that this was not of sufficient weight to justify setting aside the housing density guidance. The developer challenged this decision under section 288 of the Town and Country Planning Act 1990.
Decision
Gibbs J allowed the developers claim. An inspector was entitled to differ from a decision of his predecessor on a similar issue in relation to the application site provided that there were proper reasons for departing from it. In the present case, it was incumbent upon the second inspector to be especially clear in explaining not only the reasons for his own view but also why that view differed from the view of the first inspector.
Comment
This is simply an example of the exercise of the court's supervisory jurisdiction, and there is no guarantee that, on the decision being remitted to him, the second inspector in observing the courts ruling will not come to the same decision on the planning merits. The courts do, however, recognise the need for consistency in the decision making process. In this context Mann LJ stated in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137 that an inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another, but before doing so he ought to have regard to the importance of consistency and give his reasons for departure from the previous decision.
Fear of crime
Smith v (1) First Secretary Of State (2) Mid-Bedfordshire District Council
[2005] EWCA Civ 859
Planning permission had been refused by a planning inspector for a gyspy caravan park at a site. The Appellant appealed against a decision refusing to quash the inspectors decision. The Court of Appeal held that the judge had erred in reaching the conclusion that the reasoning set out by the inspector was clear and adequate. The inspector had taken into account as a material consideration fear and concerns about crime in circumstances where those fears were not based on past events but on an assumption based on the characteristics of the future occupiers where this assumption was not supported by evidence.
The Court held that fear and concern had to have some reasonable basis and the object of that fear and concern had to be the use, in planning terms, of the land. Having cited the guidance in the West Midlands Probation Committee v SSE and Walsall MBC (1997) JPL 323 Buxton LJ stated:"9. I respectfully draw from that guidance the conclusions that (i) fear and concern must be real, by which I would assume to be required that the fear and concern must have some reasonable basis, though falling short of requiring the feared outcome to be proved as inevitable or highly likely; and (ii) the object of that fear and concern must be the use, in planning terms, of the land. As we have seen, Pill LJ went to some trouble to demonstrate that it was the use of the land as a bail hostel, and not just the behaviour of some of the hostel's occupants, that grounded the legitimate concern: however much that behaviour was relied on to demonstrate the nature and likely effect of that use.
10. The inspector's approach in our case therefore presents two problems. First, not only had the number of incidents diminished, but those reported to the enquiry could not be reliably attributed either to the appeal site or to the applicants. Second, it was necessary in order to take these incidents into account to attribute them not merely to the individuals concerned but also to the use of the land. But a caravan site is not like a polluting factory or bail hostel, likely of its very nature to produce difficulties for its neighbours. Granted that the evidence of recently past events attributable to the site was sparse, or on a strict view non-existent, the fear must be that the concern as to future events was or may have been based in part on the fact that the site was to be a gypsy site. It cannot be right to view land use for that purpose as inherently creating the real concern that attaches to an institution such as a bail hostel.
11. Because of this difficulty, and the state of the evidence, the issue of fear of crime needed in this case to be very carefully explored. If the concern for the future rested not wholly on extrapolation from past events, but at least partly on assumptions not supported by evidence as to the characteristics of the future occupiers, then in accordance with the guidance contained in the West Midlands case it could not be taken into account."
Listed Building
Supreme Court - National requirement v heritage - PPG 15
R (on the application of Save Britain's Heritage) v Westminster City Council
[2007] EWHC 807 (Admin)
The Court rejected the claim that there had been an error in law in the Council’s decision to grant listed building consent and planning permission for the Middlesex Guildhall to be converted into the Supreme Court building for the United Kingdom.
The Middlesex Guildhall was selected as the most suitable location for the new Supreme Court. Although the exterior of the building would be unaffected the interior would require a number of changes. The Council’s planning officer had considered that the degree of change required to accommodate the course proposed and the impact on an outstanding building was balanced by the importance of accommodating the Supreme Court in that building in that location. The Council’s planning committee endorsed the contents of the report.
The Claimant contended that the Council had failed to pay proper regard to PPG15, and that even if it had applied the guidance within that policy, the form and substance of PPG15 should have been properly dealt with.
The Claimant further challenged the decision on the basis that the Council had approached its decision in the wrong way as it had made an initial finding that the Middlesex Guildhall was the appropriate venue for the new Supreme Court. The Claimant contended that the Council should first have considered whether the proposed works were so damaging that planning permission should not be granted.
The Court held that the Council had applied the correct approach and that it was appropriate to have first considered whether this was the right site for the Supreme Court as given that there would be a major and damaging impact on a listed building, unless it had been the right site, the application would have been bound to have been rejected in any event.
The Court considered that having regard to the material before it, the Council had been entitled to reach the decision that the Middlesex Guildhall was the right location for the Supreme Court and that having regard to the national interest, it was desirable and necessary under PPG 15 for the proposals to go ahead.
Grade 1 listed building - rejecting views of highway authority
R (on the application of Bayraktaroglu) v South Cambridgeshire District Council
[2007] EWHC 964 (Admin)
The Claimant challenged the decision of the District Council to grant planning permission and listed building consent for the restoration, refurbishment and change of use of an important Grade 1 listed building known as Sawston Hall. The challenge was brought on several grounds. The judge rejected all of the grounds.
Amongst the grounds was a claim that the Council were not entitled to reject the view of the Highway Authority when considering the planning application. The Court held that while the issue of highway safety raised by the highway authority was a material consideration in determining the planning application it was clear that the local authority took it into account when deciding to grant permission. It was for the Council to consider the factors in favour of granting permission and those against, and to give them such weight as it thought appropriate to reach a decision. It was open to the local authority, to reach a different view from the highway authority as to the significance of the concerns relating to visibility. Furthermore, when considering the impacts, the members of the local authority were entitled to have regard to the opinions of members who visited the site, their own experience, and the opinions of the highway authority and of the claimant’s consultant.
The Court also held that the Council was required to consider the viability of the proposals and that the evidence showed that it had done so.
A further aspect of the challenge was that certain words in the Council’s committee minutes demonstrated that immaterial factors were taken into account by the local authority. However the Court rejected this on the basis that they were not material to the decision making in respect of the application and the council would have reached the same conclusion in any event.
Other challenges to whether adequate reasons for granting permission had be given were rejected on the basis that as summary reasons were required and the reasons did summarise the reasons for granting permission, there was no basis for challenging the decision on this ground.
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