Ornua Ingredients Ltd, R (On the Application Of) v Herefordshire Council

Information casting significant doubt on whether a proposed development can satisfy an outstanding planning condition may be a material consideration when reserved matters are decided, particularly where the approved layout affects the possibility of compliance.

Where delegated officers receive such information before making the decision, they must evaluate it under the delegated authority. Depending on the terms of that authority, they may decide the matter themselves or refer it back to members. A planning authority cannot lawfully ignore relevant expert evidence merely because the issue may also arise when a condition is later discharged.

The claimant, the owner of a cheese factory adjoining a proposed housing development, challenged the council’s approval of reserved matters for the layout of 321 houses. Outline planning permission had been granted subject to a condition requiring approval of a noise-mitigation scheme before development began.

The council’s officers considered noise during the reserved matters process and advised that mitigation was capable of being achieved with the proposed layout. Shortly before the delegated decision was issued, the claimant submitted acoustic evidence challenging that conclusion and asserting that suitable mitigation might not be possible. The evidence was not referred to the environmental health officer, the developer or the planning committee, and there was no evidence that it was considered.

The central issue was whether the evidence was a material consideration which had to be addressed before approval of the reserved matters.

1. Claim allowed. The reserved matters approval was quashed and remitted to the council for redetermination.
2. Under section 70(2), a consideration is material if it is relevant to whether planning permission should be granted or refused and would carry some weight in the decision-making process. The court adopted the approach in R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370.
3. The layout of the houses and the feasibility of noise mitigation were materially interconnected. The council had in fact treated the possibility of satisfying the noise condition without changing the layout as relevant to its decision. Evidence which significantly undermined the acoustic advice on which that approach was based therefore had to be considered.
4. The new material did not necessarily require referral to members. The scope of the delegated authority could permit officers to assess relevant information themselves and decide whether to proceed or refer the matter back. The officers’ decision would still have to be rational.
5. Here, the officers gave no consideration at all to the claimant’s email or acoustic report. It could not be said that responsible officers would inevitably have proceeded without obtaining further views from the environmental health officer or members. The failure was therefore either a failure to consider a material factor or a failure properly to exercise the delegated power.
6. The court did not decide whether approval of a layout could otherwise frustrate a later condition requiring acceptable noise mitigation. The issue was unnecessary to the result.