Copeland, R (on the application of) v London Borough of Tower Hamlets

In planning law, a consideration may be material if it is rationally related to land-use issues and could carry some weight in deciding the application. A local planning authority must not direct its committee that such a consideration is legally incapable of being material when the issue is capable of relating to the use of land. The authority may decide whether the consideration is material in the particular case and what weight it deserves. Where the decision-making process was materially misdirected, relief should be refused on a no different outcome basis only if the decision would inevitably have been the same.

The claimant sought judicial review of the decision by the defendant local planning authority to grant permission for a hot-food takeaway opposite Bishop Challoner Catholic Collegiate School. The officer’s report stated that the possible effect on the school’s healthy-eating programme was not a material planning consideration. The committee granted permission, although the issue was raised during the meeting.

The central questions were whether the committee had been unlawfully directed that the issue could not be taken into account and, if so, whether the court should nevertheless refuse relief because the outcome would have been unchanged.

1. Claim allowed; planning permission quashed. The proximity of a hot-food takeaway to a school, and its potential effect on healthy eating, was capable of being a material planning consideration. It related to the proposed use of land. The absence of a specific development-plan policy or national planning guidance did not make the consideration legally incapable of materiality.
2. The officer’s report did more than advise that the issue was immaterial on the facts. Its statement that the issue was not a material planning consideration capable of having weight directed the committee that it could not take the matter into account. The council’s later correspondence confirmed that this was the advice given.
3. The issue was discussed at the meeting, but that did not cure the misdirection. The discussion occurred against the background of the officer’s definitive advice. A committee member’s concern about public health indicated that the issue might have affected the decision if the committee had been properly directed.
4. The court rejected the submission that relief should be refused because the result would probably have been the same. The council had to show that the decision would inevitably have been the same. Probability was insufficient, and the court could not evaluate the planning merits by anticipating what the elected committee would decide on lawful reconsideration.
5. The council had acted unlawfully. The grant of planning permission was quashed. The claimant was awarded the costs of the substantive judicial-review proceedings, but not the interim-injunction proceedings. A short holding injunction was to be prepared pending any submissions by the interested party.