Hayden, R (on the application of) v Kelly

In determining a planning application, the effect of proposed development on neighbouring land, including potential physical damage, is capable of being a material planning consideration. Whether it is material in the particular case is a question of law. The weight given to a material consideration is for the planning decision-maker.

The existence of parallel regulatory regimes, such as building control and the Party Wall Act, does not automatically remove a matter from planning consideration. Their relevance depends on the circumstances. Planning Policy Guidance Note 14 concerns development on land which is inherently or potentially unstable, rather than every risk of instability caused by construction works. A claimed heritage asset must have evidential support before the relevant heritage policies are engaged.

The claimant sought judicial review of the defendant council’s grant of planning permission for a two-storey side extension to the interested party’s adjoining house.

Permission had previously been granted and quashed following earlier proceedings. On reconsideration, the council treated possible structural damage from excavation as a matter addressed by the Building Regulations and the Party Wall Act. It also declined to defer the decision to investigate an alleged air-raid shelter said to be of historic interest.

The claimant challenged the decision on the grounds that the council had failed to consider ground stability and relevant national planning policy, and had failed to assess the alleged heritage asset before deciding the application.

1. The claim was dismissed. The council had not erred in law in concluding that the concerns about foundation construction were not material to this particular application.
2. The effect of development on neighbouring land, including potential physical damage, was capable of being a material planning consideration. Under section 70(2) of the Town and Country Planning Act 1990, whether a consideration was material depended on its relevance to the application. The weight given to a material consideration was for the decision-maker, subject only to the ordinary principles of irrationality.
3. The existence of other regulatory controls was not determinative. It was a matter to be weighed in the planning assessment. Here, the Building Regulations and the Party Wall Act provided relevant safeguards, including sectional foundations and a mechanism for agreeing safe working methods and resolving disputes.
4. PPG14 was relevant to the coal-mining context and the consultation protocol, but its guidance on unstable slopes concerned development on land which was inherently unstable or potentially unstable. It did not govern the asserted risk of instability arising solely from excavation for the proposed foundations.
5. The council’s supplementary report, read in context and addressed to lay councillors, conveyed that the concerns were capable of being material but were not material in the circumstances of this application because of the parallel controls. That was not the same as directing that such matters could never be material.
6. The alleged air-raid shelter had not been supported by evidence showing that it was a heritage asset of significance. The definition in Annex 2 to Planning Policy Statement 5 was therefore not met, and PPS5 and Local Plan policy EV7 were not engaged. There was no legal obligation to defer the application.
7. In any event, if the stability issue had been legally material, the result would inevitably have been the same. The application of the Building Regulations, the Party Wall Act and the structural evidence made it inevitable that the council would reach the same conclusion.

Permission to apply for judicial review was refused on paper on 24 May 2012 and after an oral hearing on 15 October 2012. Permission was subsequently granted by Patten LJ on 6 February 2013. The Administrative Court dismissed the claim.