Council of London Borough of Bexley v Secretary of State for Communities and Local Government & Anor

Under Planning and Compulsory Purchase Act 2004, section 38(6), a consideration relevant to whether a proposal complies with a development plan policy may also be a material consideration when deciding whether planning permission should nevertheless be granted.

The statutory provision does not require decision-makers to disregard such considerations or to treat them as relevant only to the first stage of the analysis. The extent of a proposal’s departure from the development plan is itself material. The weight to be given to relevant considerations remains a matter of planning judgment, subject to legal rationality.

The claimant council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal against refusal of planning permission.

The permission authorised the change of use of premises from retail use to a hot food takeaway with extraction equipment. The inspector found that the proposal failed one development plan criterion concerning the proportion of non-retail uses, but considered that other compliance with the policy and wider planning considerations outweighed that conflict.

The central issue was whether the inspector had erred in law by treating compliance with other parts of the development plan policy as material considerations in the overall planning balance.

1. The claim was dismissed. The inspector had not erred in law by treating compliance with other criteria of the development plan policy as a material consideration.
2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires applications to be determined in accordance with the development plan unless material considerations indicate otherwise. It does not require material considerations to be irrelevant to the application of the development plan.
3. The extent to which a proposal departs from the development plan or a policy within it is plainly material when deciding whether permission should be granted contrary to the plan. A consideration does not lose its materiality merely because it also bears on compliance with a development plan policy.
4. The same conclusion was supported by Council for National Parks v Pembrokeshire Coast National Park Authority [2004] EWHC 2907 (Admin), whose approach was upheld by the Court of Appeal in [2005] EWCA Civ 888. Those decisions concerned the identically worded predecessor, section 54A of the Town and Country Planning Act 1990, and rejected the contention that relevant words should be read into the statute.
5. The council’s proposed distinction between matters relevant to development-plan compliance and other material considerations was unsustainable. It would produce irrational consequences where policies were out of date or other planning policies adopted a different approach. Planning policies guide the exercise of planning judgment; they do not operate as devices for excluding relevant planning merits from consideration.
6. The council was ordered to pay the Secretary of State’s costs assessed at £6,410. No separate costs order was made in favour of the second defendant because no sufficient exceptional circumstances had been shown.