Property Law uk

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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.

Change of mind after elections

R (on the application of Saunders) v Tendring District Council and another
[2003] EWHC 2977 (Admin)

Summary

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.

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.


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.


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

Heritage assets and the setting of listed buildings

East Northamptonshire DC v Secretary of State for Communities and Local Government
[2013] EWHC 473 (Admin)

Summary

Special regard had to be given to the desirability of preserving the setting of listed buildings when balancing that factor against other material considerations in the planning balance. This was achieved by treating it as the starting point and by affording it considerable weight.

Facts

A developer applied for planning permission for five wind turbine generators and associated development. The District Council refused planning permission on the grounds of unacceptable harm to the local setting and a number of Grade 1 buildings in the locality. The developer appealed, and the Secretary of State’s Inspector concluded that the although there would be harm to a number of heritage assets, that harm would be less than substantial, temporary and reversible, such that benefits of the development (to which he attached significant weight) outweighed the harm caused. He granted planning permission for an amended development of four turbines.

The local authority applied to quash the decision.

Issues

There were three issues before the court:
  • Whether the Inspector had had special regard to the desirability of preserving the setting of listed buildings in accordance with s66(1) of the Planning (Listed Building and Conservation Areas) Act 1990;
  • Whether he had correctly interpreted and applied planning policy on heritage assets; and
  • Whether the reasons he had given for his recommendation were adequate.
Decision

The High court granted the application by the local authority and remitted the matter for further consideration. Although the weight to be given to a material consideration was a question of planning judgment (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759), to properly discharge the duty under s66(1) a decision maker was required to accord considerable importance and weight to the desirability of preserving the setting of listed buildings when balancing that consideration against other material considerations which did not benefit from statutory significance. The Inspector had failed to do this as he had treated the harm to the setting of listed buildings as being of equal importance to the wider benefits of the wind farm instead of according the former special weight.

Further, the Inspector had incorrectly applied planning policies on heritage assets by limiting himself to assessing the public’s ability to understand the assets in question and not addressing the contribution made to the assets by their setting, which was to be affected by the development. Finally, it was held that in failing to give a reasoned conclusion as to whether there were ‘planned views’ from the heritage asset, the Inspector had failed to give adequate reasons. Mrs Justice Lang therefore remitted the matter.

Comment

Although seized upon by some of the press as a victory for anti-wind farm campaigners, in truth this case does not make new law. Instead, it essentially restates what the statute already requires: that in order to properly discharge their duty under s66(1), decision makers must give considerable weight to the desirability of preserving the setting of listed buildings when balancing that factor against other material considerations.



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