QUEEN'S BENCH DIVISION
B e f o r e :
| The Queen on the application of Angelia Hinds
|- against -
Mr Paul G. Tucker Q.C. (instructed by Head of Legal and Democratic Services of Blackpool Council) for the Respondent
Mr Roger Lancaster (instructed by HBJ Gateley Wareing LLP) on behalf of the Interested Party
Hearing date: 4th March 2011
Crown Copyright ©
Mr Justice Langstaff:
"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."
Cala Homes 1
Cala Homes 2
"The Secretary of State's letter of 27 May 2010 indicated that a 'formal announcement' was going to be made 'soon'. In my judgment [Counsel for the claimant] was right to submit that the formal announcement came in the Secretary of State's statement of 6 July, 2010. That statement superseded the advice on the materiality of regional strategies given in the letter of 27 May. It purported to revoke regional strategies. The May letter had been predicated on regional strategies continuing to exist. In the July statement no mention was made of the May letter. It is reasonable to conclude that the reason for this was that the advice provided in May was now redundant. There was no need for Cala Homes, or anybody else who was aggrieved by the government's revocation of regional strategies, to resort to litigation to challenge that advice. The substantive decision at this stage, and the appropriate target for Judicial Review, was the action taken by the Secretary in July. Cala Homes went ahead with such a challenge."
"….only after the Secretary of State had failed to convince the court that his action in July was lawful and the regional strategies were restored did he resume the stance he had adopted in May. Between 6 July and 10 November, 2010, therefore, the advice in the letter of 27 May, 2010, was of no practical effect. After 10 November the May advice was reinstated and amplified. Incorporated as it was into the letter sent by the Chief Planner to all local planning authorities, it has since then remained in place."
"The Government's intended reforms in the Localism Bill could be on the Statute Book within the next 12 months. This being so, it seems to me to make perfectly good sense for authorities, Inspectors and the Secretary of State to be free to take into account the potential removal of Regional Strategies in the decisions they will in the meantime still have to make. To hold otherwise would, I think, be unreal.
54. I am therefore unable to accept that material planning considerations do not, and as a matter of law must not, embrace a Government's intention to reform the composition of the development plan itself. And I cannot see why the principle that such a consideration is capable of being material in a planning decision should exclude the intention to take away, through legislation designed for the purpose, an element of the development plan which for the time being is properly to be regarded as 'central'. Whether in any particular case this factor is indeed material to the decision being made and, if it is, the weight to be given to it will always depend on the decision maker's own judgment, which is ultimately subject to review by the court on public law grounds."
"67 The weight to be given to relevant provisions of regional strategies pending the legislative process will be for decision makers to gauge. Until the end of that process is reached regional strategies will remain in place as part of the development plans, commanding such weight for the purposes of particular decisions as authorities, Inspectors and the Secretary of State may reasonably judge to be right……"
"The work that informed the preparation of those strategies could be relevant too. And this may remain so even after the strategies themselves have gone. When, in July 2010, the Secretary purported to revoke all the regional strategies using section 79(6) of the 2009 Act he issued guidance for the local planning authorities, which, under the heading '4. How will this affect planning applications?' stated: …….'Evidence that informed the preparation of the revoked regional strategies may also be a material consideration, depending on the facts of the case.' As counsel of the Secretary of State acknowledged assessment of housing need underpinning the provisions of a regional strategy will not vanish when the imprimatur they had earned as policy is removed. Housing needs will not disappear overnight. It will be for the Government to decide how, in the future, those needs are to be addressed in policy documents formulated within the framework established by Parliament."
The Claimant's Submissions
"reflecting its specific character, more restrictive policies exist on the Moss than typical open countryside areas and new residential development is not permitted other than for agricultural or horticultural purposes";
to retain the existing rural character and prevent peripheral open expansion new development at Marton Moss was not to be permitted, and new dwellings not permitted unless
"essential in relation to agricultural or horticultural use of the land."
"(i) That the proposal would contribute to the Council's 5 year housing land supply"
(ii) That the proposal would provide for a more mixed housing offer
(iii)That the proposal would contribute to inner area regeneration."
Submissions in Response
"There is recognition that Strategic Housing Market Assessments and Housing Land Availability Assessments are important for identifying growth and land for growth. 'Authorities should also have a 5 year land supply of deliverable sites.' The original recommendation to committee was based on the 5 year housing land supply position coupled with the FCSHMA/SHLAA and annual housing monitoring report. This is entirely consistent with the approach being adopted by the Coalition Government. The application was considered on the basis of the "local" situation not some imposed figures from the Regional Assembly.
The Council's Annual Housing Report for 2010 shows a worsening of a completion situation and although it identifies housing coming through Certificates of Lawfulness and the contraction of the holiday stock the former supply is likely to reduce as a result of a more proactive monitoring approach and this supply does not do anything to improve the housing links."
"given what has been said above the Council's resolution to grant planning permission given the local circumstances and the material consideration which outweigh the conflict with the development of plan was the correct one.",
No submissions were addressed to me as to whether this was a matter which fell appropriately within his remit for decision as opposed to that of the Committee: but it plainly summarises his view that the decision which the Council had come to in March was not likely to be departed from in the light of any of the recent developments. Mr Tucker QC argued that given the ineffective revocation of regional strategies (as per Cala Homes 1) there was, in any event, no basis for thinking that regional spatial strategies no longer applied. As a matter of planning law, they did. The decision had been properly made insofar as it was made in reference to them in March. At 21st July that reasoning remained unaffected as to its validity.
"In my judgement it is a question of fact whether in the circumstances in any particular case the duty has been fulfilled. What actual steps have to be taken in order to fulfil it, as a matter of fact, depends on the circumstances of the case. Very often the circumstances will indeed require a formal Committee meeting to reconsider an earlier resolution in the light of new circumstances. However, I do not accept that is required in law if, on the fact of a particular case, it is possible to demonstrate that regard was had to material considerations in some other way."
"in the light of the decisions which the Council took, and the policies it adopted, it is entirely clear, in my judgment, that had the planning officer taken it upon himself to refer the 1995 application back to Committee for reconsideration immediately before issuing the planning permission, the Council's decision would have been the same. Indeed, it goes further than that, in my judgment….the inference which I draw is that it would have come as a considerable and unwelcome surprise to members had they been told at the beginning of October 2000 that….it was necessary for them specifically to reconsider the 1995 application before a decision notice could be issued pursuant to the 1995 resolution."
"in practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of Section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, (c) that on a reconsideration the authority would reach (might reach) the same decision"
"in my judgment, an authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit the application was not specifically placed before it for reconsideration."