Summary
A planning authority must have regard to every material consideration, but may rationally give a material consideration no weight. This applies to supplementary planning guidance referred to in a development-plan policy. A proposal may comply with the development plan even where such guidance is not applied, provided the authority assesses the plan fairly as a whole. A later version of national policy requires reconsideration only where it is capable of materially affecting the decision. An environmental statement need contain only information reasonably required to assess likely significant effects. Speculation about uncertain affordable housing or un demonstrated cumulative effects is insufficient.
Factual background
Shopkeepers adjacent to Shepherd’s Bush Market challenged the Council’s outline planning permission for Orion’s mixed-use redevelopment. They alleged that the Council had unlawfully disregarded a supplementary planning document, failed to reconsider the application after publication of the final National Planning Policy Framework, and accepted an inadequate environmental statement.
The court considered the statutory duties under the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004, and the environmental impact assessment regulations.
Held
- Ground 1 dismissed. Sections 70(2) of the Town and Country Planning Act 1990 and 38(6) of the Planning and Compulsory Purchase Act 2004 require the decision-maker to have regard to material considerations and give priority to the development plan. The authority must first assess whether the proposal accords with the plan as a whole and then consider whether other material considerations indicate a different outcome.
- The Council was entitled to treat the supplementary planning document as material but give it no weight while its validity was under challenge. The document had not thereby become immaterial. Policy WCOA 3 was not dependent upon the continuing existence or application of the supplementary planning document. The Council could assess the proposal against the policy’s objectives and the remainder of the development plan. Its conclusion that the development complied with the plan was a reasonable planning judgment.
- Ground 2 dismissed. The publication of the final National Planning Policy Framework did not automatically require reconsideration. Applying R. (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, R. (Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 and R. (Hinds) v Blackpool Borough Council [2012] EWCA Civ 466, reconsideration is required only where the new factor might realistically have affected the outcome. No material difference was shown between the draft and final policy in the circumstances of this application.
- Ground 4 refused. Under regulations 2(1) and 3(4) and Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the environmental statement had to contain information reasonably required to assess likely significant effects. The assessment adequately addressed indirect, secondary and cumulative effects. Affordable housing was uncertain and would not increase the maximum number of dwellings; its possible later introduction did not require speculative assessment at outline stage. The other projects relied upon had not been shown to create effects requiring assessment.
- Permission to apply for judicial review was granted on grounds 1 and 2 but refused on ground 4. The claim was dismissed.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
This was a first-instance judicial review. The judgment records an earlier related decision, in which R. (Wakil and others) v Hammersmith and Fulham London Borough Council [2012] EWHC 1411 (QB) quashed the Council’s supplementary planning document.
Key cases cited
16 authorities cited.
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant) [2006] UKHL 52
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759
- Berky, R (on the application of) v Newport City Council & Ors [2012] EWCA Civ 378
- R (Hinds) v Blackpool BC [2012] EWCA Civ 466
- Dry, R (on the application of) v West Oxfordshire District Council [2010] EWCA Civ 1143
- Brown, R (on the application of) v Stobart Air Ltd [2010] EWCA Civ 523
- Boggis & Anor v Natural England & Anor [2009] EWCA Civ 1061
- R. (on the application of Jones) v Mansfield District Council [2004] Env. L.R. 21
- Kides, R (on the application of) v South Cambridgeshire District Council & Ors [2002] EWCA Civ 1370
- R. (on the application of Blewett) v Derbyshire County Council [2004] Env. L.R. 29
- Sweetman v An Bord Pleanála Case C-258/11
- R. (on the application of Bowen-West) v Secretary of State for Communities and Local Government [2012] JPL 1128
- R (Wells) v Secretary of State for Transport, Local Government and the Regions Case C-201/02
- Loup v Secretary of State for the Environment and Another (1995) 71 P & CR 175
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Cases citing this case
3 later cases · 1 positive · 2 neutral
Most senior citing decisions:
- Hayle Town Council, R (on the application of) v The Cornwall Council [2023] EWHC 389 (Admin) considered
- Patrick Hardcastle, R (on the application of) v Buckinghamshire Council [2022] EWHC 2905 (Admin) considered
- Leckhampton Green Land Action Group Ltd), R (On the Application Of) v Tewkesbury Borough Council [2017] EWHC 198 (Admin) applied
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