QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF COPELAND||Claimant|
|LONDON BOROUGH OF TOWER HAMLETS||Defendant|
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Mr R Harwood (instructed by Legal Department, London Borough of Tower Hamlets) appeared on behalf of the Defendant
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MR JUSTICE CRANSTON:
"The following issues were raised in representations but they are not material to the determination of the application. The adjacent Bishop Challoner Catholic Collegiate School is trying to promote healthy eating to its pupils, and the introduction of a take-away establishment would encourage poor eating habits.
Officer comment: While this is a valid concern, it is not a material planning consideration that can have weight in determining this application against council policy."
The background to this was that the executive head of the school had written that she strongly objected to the application.
"The potential effect of a proposed use on the dietary choices of school children is not a matter going to the character of the use of land. The healthiness or otherwise of the food on offer at take-away premises will naturally vary and will not affect the character of use in land use planning terms one way or the other. The menu choices on offer could not for example be reasonably controlled by condition."
The letter added that members had in fact considered the issue.
"(6) ..... for the purpose of any [planning] determination to be made ..... the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"121. In my judgment a consideration is 'material', in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues."
It is trite law that the weight to be attached to any material consideration is a matter for the decision maker, subject to Wednesbury unreasonableness: Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759; R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council  UKSC 20, .
"It may be conceded at once that the material considerations to which the Minister is entitled and bound to have regard in deciding the appeal must be considerations of a planning nature. I find it impossible, however, to accept the view that such considerations are limited to matters relating to amenity. So far as I am aware, there is no authority for such a proposition and it seems to me wrong in principle. In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration."
The Government's Planning Policy Statement 1: Delivering Sustainable Development of 2005 refers to promoting, amongst other things, personal well-being and to the need for planning authorities to seek to achieve outcomes which enable social, environmental and economic objectives to be effected together.
"It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as to the background to the consideration of character of land use. It can, however, and sometimes should be given direct effect as an exception under a special circumstance. But such circumstances when they arise will be considered not as a general rule but as exceptions to a general rule to be met in special cases."
That passage was cited in Newport Borough Council v Secretary of State for Wales  ELR 174,  JPL 377, where the Court of Appeal held that it was a material error of law to hold that a genuinely held public perception of danger from a proposed development, albeit that it was unfounded, could never amount to a valid ground for refusal.
(a) A material consideration
(b) No different outcome?
"10 ..... Probability is not enough. The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision ..... "
Lord Justice Keene (at paragraph 16) agreed, observing that it was clear from the submissions on behalf of the NHS Primary Care Trust in that case that it could not say that there might not have been a different outcome had there been proper consultation at the proper time. That, in his view, was fatal to their case.
"As set out in your enclosed letter, ..... Mr Miah plans to open a business ..... in the next week or two. You will therefore obviously need an injunction against Mr Miah unless he agrees to matters set out. Please confirm that in view of the fact that your planning authority has responsibility for enforcing against a breach of planning control ..... that you support this course of action. If you do not, please explain why not."
"If your client's challenge is successful and the planning permission is quashed, then the council as the local planning authority will consider whether or not it is expedient to take enforcement action at that stage."
"In my view there is considerable force in the concern expressed by the claimant in his application but if the interested party persists in implementing the consent, whether or not those works are at risk, then there would be prejudice to the claimant even if they were not to be relied upon by the defendant or interested party in relation to discretion. Different considerations apply in relation to subsequent enforcement proceedings ..... not expedient to enforce which could mean the claimant is effectively deprived of his remedy in these proceedings."
I do adopt that thinking.