Kides, R (on the application of) v South Cambridgeshire District Council & Ors

Under Town and Country Planning Act 1990, section 70(2), a planning authority must have regard to material considerations until the decision notice is issued. The duty is not confined to a committee’s formal consideration of the application. It extends to relevant acts of the authority and its delegated officers.

A formal referral back to committee is not invariably required after a resolution in principle to grant permission. The authority must, however, have considered every material consideration with the application in mind. If a delegated officer knows, or ought reasonably to know, of a new objectively material consideration, the application must be referred for reconsideration unless the authority has already considered it with the application in mind and would reach the same decision.

The Council resolved in 1995 to grant outline permission for a substantial development at Home Farm, Longstanton, subject to conditions and a section 106 agreement. Negotiations delayed the decision notice until October 2000.

Mrs Kides sought judicial review, contending that intervening planning guidance, affordable-housing guidance, the Local Plan Review, the possible availability of Oakington Barracks, and prematurity required a fresh reconsideration. Ouseley J refused permission to apply for judicial review, while giving a reserved judgment on the substantive issues.

The appeal concerned whether the Council had discharged its continuing duty under section 70(2) to have regard to all material considerations before issuing the decision notice.

1. Appeal dismissed unanimously. Jonathan Parker LJ gave the judgment, with which Laws and Aldous LJJ agreed. The Council had discharged its duty under section 70(2) of the Town and Country Planning Act 1990.

2. In section 70(2), dealing with an application has a broad meaning. It includes all acts of the planning authority, or on its behalf, which bear directly or indirectly on the application. It is not confined to the formal grant or refusal functions in section 70(1), and normally continues from receipt of the application until issue of the decision notice.

3. A consideration is material if it is relevant to whether permission should be granted or refused and has some weight in the balancing exercise. Materiality is objective: the consideration must be rationally related to land-use issues.

4. The duty to have regard to material considerations does not impose an inflexible requirement for a further committee meeting whenever a new consideration arises after a resolution in principle. At the date of the decision notice, the authority must have considered all material considerations with the application in mind, even if it has not formally reconsidered the application as a discrete item.

5. If a delegated officer becomes aware, or ought reasonably to become aware, of a new objectively material consideration before signing the notice, the authority must consider it before final determination. Prudence ordinarily requires referral. The officer may safely issue the notice only if satisfied that the authority knows of the factor, has considered it with the application in mind, and would, rather than merely might, reach the same decision on reconsideration.

6. Here, the Council knew of and considered each asserted new factor in a context in which the 1995 application was prominent. Its decisions and policies showed that a formal reference back immediately before issue would have produced the same result.

7. The court also held that a claimant with a real and genuine interest in obtaining relief may rely on all available grounds, including grounds in which the claimant has no personal interest. The appellant therefore was not barred from advancing the affordable-housing ground, although that conclusion did not affect dismissal of the appeal.

1. Court of Appeal (Civil Division): Dismissed Mrs Kides’s appeal and upheld the conclusion that the Council had complied with section 70(2) of the Town and Country Planning Act 1990.

2. High Court, Queen’s Bench Division: Ouseley J, by order dated 26 October 2001, refused permission to apply for judicial review. His reserved judgment addressed the substantive challenge to the planning permission.