Lucas (Save Diggle Action Group)), R (On the Application Of) v Oldham Metropolitan Borough Council

Under Town and Country Planning Act 1990, an alternative site may be a material planning consideration. The court must determine whether it falls within a category which must be considered or may properly be considered; the weight given remains a matter for planning judgment. Where a concrete, viable alternative would avoid substantial heritage harm, it may be irrational to exclude it from consideration. Planning officers must not direct a committee to disregard such an alternative. A procedural flaw will not necessarily lead to relief where the court is highly likely that the outcome would have been substantially the same. That threshold was not met here.

The claimant challenged the council’s grant of planning permission and listed building consent for relocating Saddleworth Secondary School from Uppermill to the Pallet Works site in Diggle. The proposed development involved demolition of a listed link bridge and was accepted to cause substantial harm to the setting of a Grade II listed building.

The central issue was whether the planning committee had unlawfully been directed to disregard redevelopment of the existing Uppermill site, despite that site being viable, costed and capable of avoiding the heritage harm. Other challenges concerned marketing, Green Belt and heritage assessment, consultation, reasons and statutory discretion.

1. The claim succeeded. The resolutions granting permission for the school, associated works and listed building consent were quashed.
2. Section 70(2)(c) of the Town and Country Planning Act 1990 requires regard to be had to material considerations. The present authorities recognise three categories: considerations which must be taken into account; considerations which may be taken into account and may properly be given no weight; and legally irrelevant considerations which must not be taken into account.
3. The availability of an alternative site may fall within either of the first two categories, depending on the facts. The Uppermill site was a concrete and costed alternative. It was owned by the council, was not ruled out by the funding feasibility study, and would avoid substantial harm to the heritage asset. It was therefore at least a consideration which could properly be taken into account and, on these facts, one which rationality required the committee to consider.
4. The main report did not merely advise members that they could disregard Uppermill. Its imperative language directed them to put the alternative out of their minds. The committee therefore considered the advantages of the Pallet Works site against the heritage harm, but did not weigh the financial, educational and construction disadvantages of Uppermill against the benefit of avoiding that harm. The defect was material because the court could not say that the outcome would necessarily have been the same.
5. The remaining grounds failed. The marketing exercise and environmental statement were not materially misleading; heritage harm had been adequately considered in the overall planning assessment; the transport-cost point did not require separate inclusion; consultation defects did not substantially deny participation; and the reasons were adequate.
6. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981. It was not highly likely that the outcome would have been substantially the same had members been permitted to consider Uppermill.